https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8540

Wanjiru v Republic (Criminal Appeal E022 of 2023) [2026] KEHC 8540 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 8540 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E022 of 2023 DKN Magare, J June 3, 2026 Between Moses Kimani Wanjiru Appellant and Republic Respondent Judgment 1.This appeal arises from the Judgment, conviction and sentence of the Honourable Honourable M.W. Nyakundi (SPM) delivered on 22.09.2021, in the Kandara MCSO Case No. 79 of 2019. The appeal is stated that the same was filed pursuant to leave granted in Murang’a Misc. Case No. E009 of 2022. 2.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 diverse dates between January 2019 and 31st October 2019 at Gatanga Sub-county of Muranga County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of LWW, a child aged 9 years. 3.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 diverse dates between January 2019 and 31st October 2019 at Gatanga sub-county of Murang’a County, the Appellant intentionally and unlawfully touched the breasts, buttocks and vagina of LWW, a child aged 9 years. 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 optional 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 Appellant was arraigned and he denied the charges. A plea of not guilty was consequently recorded. 8.The trial court considered the case and rendered judgment on 22.9.2021. The Court found the Appellant guilty and convicted him of the offence of defilement. The Appellant was also sentenced to life imprisonment. 9.The Appellant, aggrieved, lodged this appeal vide the Petition of Appeal dated 26.1.2023. The appellant filed an application which was allowed in the following terms:18.Be that as it may, since the applicant has expressed an intention not to pursue the application, in the interest of good order and tidying up the court record, I will mark the application as withdrawn. I will also allow prayer 2 of the Motion and order that the written submissions filed on behalf of the applicant on 19th October 2023 by his previous Advocates be and are hereby expunged from the record.28.It is clear from the above provision that this court has wide discretion to grant leave to an appellant to amend his petition of appeal on terms it deemed just. Although this prayer was vehemently opposed by the respondent, I find that since a petition of appeal forms the back bone of an appeal, it would be in the interest of justice to allow the applicant to amend his petition to enable him plead all the grievances he wishes to ventilate in his appeal against his conviction and sentence. This in my view is what due process is all about.I therefore grant the applicant leave to amend his petition of appeal. The amended petition of appeal to be filed and served within the next 21 days. 10.This resulted in an amended petition dated 7.11.2023, which raised the following material and nonrepetitive grounds:a.That the learned trial magistrate erred in law and in fact by arriving at his decision without considering that the prosecution evidence is full of blatant lies and glaring inconsistencies.b.That the Learned trial Magistrate erred in law and in fact by failing to appreciate the fact that the prosecution did not prove its case beyond reasonable doubt.c.That the learned trial magistrate erred in law and in fact by failing to consider the sworn defence of the Appellant.d.That the learned trial magistrate erred in law and in fact by proceeding with the trial and subsequently convicting the accused person, on an erroneous and misled position that the accused was not a minor at the time of alleged commission of the offence and the commencement of the proceedings.e.That the learned trial magistrate erred in law and in fact by failing to appreciate the right to legal representation due to the gravity of the charge against the accused person thereby violating Article 50(2)(h) of the Constitution of Kenya, 2010.f.That the learned trial magistrate erred in law and in fact in meting a life imprisonment to the accused person, a sentence which was manifestly harsh and excessive in the circumstances.g.That the learned trial magistrate erred in law and in fact by failing to consider that the life sentence imposed upon the accused person was discriminatory in nature and contrary to Article 27 & 28 of the Constitution of Kenya, 2010.h.The learned trial magistrate erred in law and fact in failing to find that the Appellant’s right to legal representation under Article 50(2)(g) and (h) of the constitution was violated. 11.Parties were directed to file submissions and submissions dated 19. 10. 2023 were expunged from the record. Evidence 12.At trial, PW1, the minor testified that she was born on 23.12.2010 and in class 4. She went to borrow a match stick from Felix Kimani. The Appellant was called Kim or Moses and lived near her home. He pulled her and took her to his house. He removed her clothes and pulled down his pants. He laid on her and put his penis into her vagina. He did bad manners and told her to go and not tell anyone. 13.Baba Felix saw her leaving the Appellant’s house and he asked her to tell the truth. He then took her to Mukarara Hospital. This was the third time he defiled her. On cross examination, she stated that Baba Felix heard the bed shaking and stopped outside. He did not see him pull her. She was not bleeding. 14.PW2 was Joh Kuria. PW1 was her sister’s daughter. She found PW1’s sandals outside the Appellant’s house. He asked what was going on and PW1 said the Appellant was doing bad manners to her and this was second time. The Appellant emerged and took off. He took PW1 to the chief. PW1 was treated at Karwara hospital and the Appellant was arrested the same day. On cross examination, he stated that he saw sandals outside the door. He found PW1 wearing the sandals. 15.PW3 was Dr. Kamau based at Kirwara hospital. He produced P3 Form of 1.11.2019 and treatment card. On examination, PW1’s hymen was broken. There were some blood and epithelial cells. 16.PW4 was PC Manasse Ithiru No. 90879. He was the current Investigating Officer. PW2 reported on 31.10.2019 that PW1 had been defiled. He examined the minor and the medical reports. He produced birth certificate. Upon investigations, he narrowed down on the Appellant as the suspect and charged him with the offence. 17.The Appellant also testified on oath as DW1. He testified that he was in form four in Gateiguru Secondary School. He was 21 years. The previous night of 31.10.2019, PW2 came drunk and started causing chaos. PW2 told him to go back to his mother. The Appellant fled as PW2 wanted to assault him. On the material day, he was doing his homework given at school. PW2 then appeared shouting “here he is’. He ran but the members of the public arrested him. He testified at length that PW2 was harassing him. Submissions 18.The appellant submitted that it is important that both mens rea and actus reus coincide and are proved to the required standard of beyond reasonable doubt in criminal matters. He set out several issues or sub-issues as follows:a.Whether the Charge Sheet was defective?b.Whether prosecution’s evidence contained contradictions, discrepancies and inconsistencies?c.Whether the Prosecution proved its case to the required standard?d.Whether the Appellant’s defence was considered?e.Whether the Appellant was furnished with prosecution’s documents and evidence?f.Whether there was a need to afford the accused person with a legal representative?g.Whether the sentence was harsh and excessive? 19.It was submitted that the charge sheet was defective since it indicates that the offence was committed “on diverse dates between January 2019 and October 2019”. This is a significant oversight and which ought not to be overlooked, because the charge sheet must provide sufficient details to inform the accused of the specific nature of the allegations against them. Reliance was placed on the case of Kasyoka v Republic [2003] KEHC 98 (KLR), where the court, Mbaluto J, held as follows:The rule against duplicity arises from the provisions of section 134 of the Criminal Procedure Code. The section provides:- “Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”As stated in the Mahero case the purpose of the rule which is one of fact and degree is to enable the accused to know the case he has to meet 20.They submitted that the court in the foregoing case, emphasized that a defective charge sheet, which lacks essential details such as the exact time of the alleged offence, can lead to a miscarriage of justice. He relied on the case of SK v Republic [2024] KEHC 1894 (KLR). 21.He submitted that he was charged under a wrong section of the law. He submitted that he ought to have been charged with a case of incest contrary to Section 20 of the Sexual Offences Act instead of defilement contrary to Section 8 of the Sexual Offences Act. He relied on the case of JMI v Republic [2024] KECA 758 (KLR). It does not say what the appellant indicated it says. 22.He relied on the case of JH v Republic (Criminal Appeal 18 of 2019) [2024] KECA 228 (KLR). He submitted that charging the appellant under the wrong section of the law prejudiced his right to a fair trial and led to a miscarriage of justice. 23.He submitted that the evidence was full of contradictions, discrepancies and inconsistencies in a witnesses’ that makes it impossible to accept the evidence, no matter how honest they appear. They submitted that the prosecution failed to prove the offence of defilement to the required standard of proof that is beyond reasonable doubt. They zeroed in on the medical evidence and the investigation process. 24.They submitted that the evidence was that her hymen was broken but it was not specified whether the broken hymen observed was a fresh or old injury. The age of the injury provides crucial context regarding the timing of the alleged offence and its omission is critical. They submitted that the medical evidence indicated that there were no scratches on labia majora or minora and no blood stains. 25.Further reliance was placed on the cases of PKW-Vs-Republic (2012) eKLR, JND -vs- Republic (2025) KEHC 9446 (KLR) and Republic v MMG (Criminal Appeal No. 120 of 2018) [2019] KEHC 3452 (KLR). 26.He submitted that defence evidence was disregarded. He submitted that the case was wholly fabricated against the Appellant who was an adopted child and was not wanted in the victim’s family which led to a grudge. He submitted that the issue of a grudge was evident in the evidence of PW1, who during cross-examination, stated at page 22 paragraph 14-15 that "uncle has been chasing you away severally, and they did not have a good relationship with him. Reliance was placed on the case of John Mwangangi v Republic (Criminal Appeal 4 of 2019) [2019] KEHC 2654 (KLR), in respect of the question of there being grudge. 27.He submitted that the state failed to supply him with supporting documents contrary to Article 50(2)(j) of the constitution. Reliance was placed on the case of Republic v John Muchira Gatimu [2017] eKLR. 28.He submitted that the court failed to protect his right to legal representation. Reliance was placed on Jared Onguti Nyantika v Republic [2019] KEHC 9279 (KLR), where G.W. Ngenye-Macharia J, as she then was, held as follows:“11.It is important to first address the legal issues raised. The main one was that Article 50(2)(g) of the Constitution which provides for the right legal representation was violated. This provision requires that an accused is informed, allowed to choose and be represented by an advocate. This fundamental to trial process and to deny it, or failure to facilitate it is an injustice (see Republic V Karisa Chengo and 2 Others (2017) eKLR). The test is whether a court informed the accused of this right. I single out a persuasive authority in the case of Joshua Njiri v Republic [2017] eKLR in which the court noted the following;"From the material filed before this court I take the following position: '...Fourthly, the right to legal representation is anchored under Article 50 (2) (g) and it is incumbent upon the trial court to inform the accused of that right promptly. In my view the onus to bring the resolution of this case within the ambit of Article 50 fell squarely on the learned trial magistrate.”12.Further, in the case of Daniel Mpayo Ngoiyaya V Republic (2018) eKLR the High Court determined that where an accused is faced with a serious offence or a sentence that would materially prejudice the him the court is bound to inform an accused of this right. The court noted that the failure to do so is a miscarriage of justice. 29.He further relied on the Legal Aid Act, No. 6 of 2016, which gives effect to among other Articles of the Constitution, Article 50(2) (g) and (h). 30.Finally, he submitted that the sentence was excessive and very harsh and traumatizing noting that the Appellant who is currently 22 years old is of very young age. In essence the sentence literally shuttered the Appellant’s future. At the time of conviction, the Appellant had not invested in himself, he had not done any developments due to the fact that he was still in school at Form 3. 31.He placed reliance on the case of Ayako v Republic [2023] KECA 1563 (KLR). This decision has however been overturned by a decision of the Supreme Court [PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] reported as Republic v Ayako [2025] KESC 20 (KLR), where they stated as follows:“In Muruatetu I, faced with a similar question of ascribing a term sentence to life imprisonment, this court considered article 51 of the Constitution which provides for the rights of detained persons. Sub article 3 thereof specifically tasks Parliament with enacting legislation for the humane treatment of detainees, persons in remand and convicts. We, therefore, held that while life imprisonment ought not necessarily mean a prisoner’s natural life, it is for the Legislature to prescribe what constitutes life imprisonment and the parameters applicable, if at all. In that connection, we did, as the Supreme Court, recommend that the Attorney General and Parliament ought to commence an enquiry on this issue, and develop legislation on what constitutes a life sentence. Despite making this recommendation on December 14, 2017, and making an order that the Judgment be placed before the Speakers of the National Assembly and the Senate to, among other things, set the parameters of what constitutes life imprisonment, we note this recommendation has not been given consideration by the two offices of Parliament.47.In view of the foregoing, we find that the Court of Appeal ought not to have proceeded to set a term sentence of thirty (30) years as a substitution for life imprisonment, as the effect would be to create a provision with the force of law while no such jurisdiction is granted to it. The term of thirty years was arrived at arbitrarily without involvement of Parliament and the people. In consequence, we find that the Court of Appeal ventured outside its mandate and powers.In conclusion, having found and held as we have hereinabove, the remedy that commends itself to us, is the setting aside of the Court of Appeal’s Judgment to the extent that it determined the parameters of life imprisonment and to the extent that it converted the respondent’s life imprisonment sentence to thirty (30) years running from July 18, 2011. For the avoidance of doubt, the High Court’s Judgment delivered on May 24, 2017 is hereby reinstated. 32.He submitted that the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) emphasize rehabilitation as a key purpose of imprisonment, suggesting that life imprisonment without the possibility of parole can undermine the right to human dignity and the prospect of rehabilitation. 33.The Respondent also submitted via the submissions dated 14.5.2025 that the charge sheet was not defective for want of specific dates of the offence and any technicalities would be cured under section 382 of the Criminal Procedure Code. 34.It was also submitted that medical evidence was consistent and credible. They relied on Evans Wanjala Wanyonyi v Republic (2019) KECA 679 to submit that DNA was not necessary in proving defilement. 35.The Respondent submitted on legal representation that the Appellant participated in the trial and did not suffer in prejudice. Reliance was placed on William Oongo Arunda v Republic (2022) KECA 23. 36.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 37.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. 38.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." 39.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. 40.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 stated 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." 41.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." 42.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. 43.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. 44.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. 45.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 9 years old. I reproduce Section 8 (1)-(4) of the Sexual Offences Act as follows:(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. 46.A court dealing with the first 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. 47.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. 48.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.’” 49.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. 50.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, both in chief and in cross examination. 51.PW1 displayed her versions of the events that led to her ordeal, that when she had gone to ask for a match box at Felix Kimani, the Appellant pulled and led her to his house where he removed her clothes and pulled down his pants. He lay on top of her and inserted his penis in her vagina. PW2 saw her leaving and inquired why she was from the Appellant’s house. She narrated what had transpired. The testimony of PW1 was corroborated by PW2 who testified that he had seen sandals that belonged to PW1 outside the Appellant’s house and in fact saw PW1 wearing the sandals to live the Appellant’s house. 52.The above testimony was also corroborated by the medical evidence of PW3. The uncontroverted medical evidence was that PW1’s hymen was broken. There were some blood and presence of epithelial cells. He was of the opinion that PW1’s vagina was penetrated using a penis. 53.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 cousin and they stayed in the vicinity. The Appellant’s defence was only that there was a grudge relating to land that caused PW2 to feign the defilement case so that he goes to jail. There was no grudge with the minor. 54.However, the evidence of PW1, PW2 and PW3 left no doubt was cogent and the court below believed the same. There are no contradictions in regard to the occurrence of the offence. That the Appellant committed the offence herein. 55.The appellant took issue with medical evidence. Medical evidence is not a necessity for proof of the offence of defilement. Penetration was not just from the medical record, but from the account by the minor. It was consistent all through. The minor was able to show the locus in quo, the bed behind the appellant’s shop where the defilement took place over the period. I am satisfied that the minor was penetrated. The court found the evidence of the minor credible. In the case of Geoffrey Kionji vs Republic Cr. Appeal No 270 of 2010, the court held as thus:“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80, Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.As such, it is evident that subjecting an accused to a medical examination to prove that he committed the offence is not a mandatory requirement of law and we find this ground to be unfounded.1.I have perused the same evidence and I do find it is credible and consistent. The medical evidence showed penetration. In addressing the question of experts, the court of appeal in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that:“… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so." 57.These were expert evidence. In addressing expert evidence, the court must have regard to the entire gamut of evidence, not just expert evidence. Courts have consistently emphasized the value of expert opinions in judicial proceedings; such evidence is not necessarily conclusive or binding. As was held in Shah and Another vs. Shah and Others [2003] 1 EA 290:The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so. 58.Further, the Court of Appeal, on its part in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that:“… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so." 59.Courts must give proper respect to the opinions of experts; such opinions are not, as it were, binding on the courts, and the courts must accept them as stated in Parvin Singh Dhalay vs. Republic [1997] eklr; [19951998] 1 EA 29, where it was held that:“It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say: Because this is the evidence of an expert, I believe." 60.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.” 61.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…." 62.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, where there is doubt. In this matter there was no doubt. 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. ….”12.Consequently, age herein was proved by the production of the Birth Certificate. The birth certificate stated that PW1 was born on 23.12.2010 and so was 9 years old. The birth certificate was registered on 28.2.2011 which was proper and credible, analyzed with the surrounding evidence and circumstance. 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”. 63.The appellant raised the issue of contradictions. Contractions, unless satisfactorily explained, will usually but not necessarily lead to the evidence of a witness being rejected. As was noted in Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6: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. 64.In Philip Nzaka Watu vs. Republic [2016] eKLR, the Court of Appeal held that:“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question." 65.Consequently, it was the primary duty of the trial court, which it failed, to carefully analyze the contradictory evidence and determine which version of evidence, on the basis of judicial reason, it could prefer. In Erick Onyango Ondeng’ vs. Republic [2014] eKLR, the Court of Appeal held that:“The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honoured devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See OKENO VS REPUBLIC (1972) EA 32). It is in the above context that this Court has said time and again that it will defer to and respect findings of fact by the trial court as affirmed by the first appellate court after due re-evaluation and analysis, because the second appellate court operates from the distinct advantage of not having seen or heard the witnesses. This Court will therefore not interfere with findings of fact by the two courts below unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole, the courts below were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law." 66.The appellant raised issue with the question that Article 50 (2)(g) and (h) were not complied with. 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; 67.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. 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. 68.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 69.The last issue is that he ought to have been charged for incest since the complainant was a cousin. This point is dead on arrival. Section 20 of the Sexual Offences Act provides as follows:(1)Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person. 70.A cousin is not one of the relatives covered in section 20 of the Sexual Offences Act. Secondly, the mere existence of section 20 does not repeal section 8 of the Sexual Offences Act. The net effect is that I find no fault in the case. The appellant was properly convicted for defilement under section 8 of the Sexual Offences Act. 71.The defence evidence was so weak that no reasonable tribunal will believe the same. A nine-year-old gave cogent evidence that was free from any contradiction. It was organic evidence that was rock solid despite intense cross examination. I dismiss the same as a sham. 72.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 sentence was therefore the mandatory minimum created by statute and the trial court cannot be faulted for imposing it. 73.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. 74.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. 75.There was no sentence available other than a life sentence. Determination 76.I make the following final orders:a.This appeal is devoid of merit and is dismissed in limine.b.14 days right of appeal.c.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: -Muraya for the AppellantMr. Kihara for the StateAppellant at Kamiti presentPC Job Kitheka at Kamiti Maximu PrisonCourt Assistant – MartinM. D. KIZITO, J.