1. The appellant was charged with the offence of defilement of child contrary to Section 8(1) as read with Section 8(2) of the sexual Offences Act no. 3 of 2006.
2. The particulars of the offence were that the appellant, 11 th February 2025 at Kavuvoni Village, Kisau Location in Mbooni East Sub County , Makueni County , intentionally and unlawfully caused his penis to penetrate the anus of V.M.N , a child aged 3 ½ years.
3. The appellant was charged with an Alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act . , 11 th February 2025 at Kavuvoni Village, Kisau Location in Mbooni East Sub County , Makueni County , intentionally and unlawfully did an indecent act to anus of VMN , a child age 3 ½ year, by touching his private parts namely anus with his penis.
4. The appellant was convicted of the defilement of child contrary to Section 8(1) as read with Section 8(2) of the sexual Offences Act no. 3 of 2006 to serve life imprisonment.
5. The appellant was aggrieved by the conviction and filed this appeal. He set out the following grounds of appeal:
a) That the learned trial magistrate erred in law and facts by convicting the appellant on evidence that did not meet the minimum threshold to sustain a conviction.
b) That the learned trial magistrate erred in law and facts by sentencing the appellant to a harsh and excessive sentence.
c) That the learned trial magistrate erred in law and facts by not considering the appellants sworn defence.
d).That the trial court erred in both law and facts failing to consider the contradictions and inconsistencies in the whole prosecution that did not warrant conviction.
e).That the appellant be furnished with trial proceedings record for more grounds to be adduced during the hearing of the appeal.
6. PW 1 Caroline Wavinya is the mother to the victim complainant. She told the court that the appellant is her former husband, with whom they started staying together in April 2024, though he was not the biological father to the complainant. On 11 th February 202, she left for work and left the complainant with the appellant. When she came back in evening, she found the victim crying.
7. Upon enquiry, the victim explained to her that they had gone to the farm with the appellant, and that the appellant had ordered to look to the front and he removed his trousers and inserted his stick in the complainant’s buttocks. She noted that the complainant was passing gas and had stool on his buttocks.
8. When she confronted the appellant, he became very violent towards her, and threatened the witness and the victim. The witness took the child and escaped. She reported the matter to the village manager, who advised her to report the same to the police, and later the child was referred to hospital for treatment. According to PW1, the child was born on 16 th August 2021.
9. In cross examination, the witness stated that when she arrived at home that evening, the child ran towards while crying. That she was also chased from the homestead on the same day, after she reported the matter to the police.
10. V.M is the victim of the alleged offence. He identified the appellant in court and described him as his dad. He went on to tell the court that the appellant had asked him to look to the front and that he inserted his stick in his buttocks. Though the child did not get to see the stick, though he experienced pain. He later reported the incident to his mother.
11. No. 107467 P.C Evelyne Njoki Nyaga, a police officer based at Mumbuni police station informed the court that she investigated the case. That the complaint was reported to the police station by PW1. In the course of investigations, she obtained a Health Clinic card as proof that the child was born on 3 rd August 2021. She referred the child to hospital and later, charged the appellant with the offence before court.
12. Pw 4, Mr. Francis Kilonzo is a clinical Officer based at Kisau Sub – county hospital. He produced the P3 form filled in respect of the victim, who was seen at the facility. Upon examination, the victim was disoriented. His inner garments were wet and the anus had lacerations at 3 o’clock to 6 o’clock. It was at the facility that the P3 form as filled together with the post rape care form. The minor was treated. The medical documents were produced as exhibits in court. In cross examination, the medical officer stated that the probable weapon used was a blunt object.
13 .Upon the closure of the prosecution's case, the court gave a ruling on whether there was a case to answer. Section 211 of the Criminal Procedure Code was complied with. The appellant opted to give sworn testimony, and call two witnesses in his defence case.
14. DW1 was the Appellant. He testified that on the 11 th February 2025, he had left his house at 7 a.m and that he returned home at 7 p.m. He found PW 1 and PW 2 in the house in company of his parents. That PW 1 left in company of PW 2 and never returned home until 16 th February, when PW 2 went back home in the company of police officers and caused him to be arrested.
15. He went on to state that he had grudges with PW2 who was unfaithful in the marriage, and always came home late. That upon his arrest, pw 1 took 3 goats, chicken and household goods and relocated to Mwaani market where she resided with another man.
16. DW 2 Onesmus Mutuku is the father to the appellant. He told the court that on 11 th February 2025, PW 1 and the appellant left home for work. That he was left at home in company of pw 2. Later that evening, Pw 1 came back home, and shortly thereafter, the appellant came home. Later, the same evening, PW1 left in company of PW 2 and never returned home until 16 th February 2025, when she went with the police and caused the appellant to be arrested, while DW 2 was in church.
17. DW3 is the mother to the appellant. She corroborated the evidence of DW 2, and told the court that she was with PW 2 all day. In cross examination, she told the court that she did not examine the genitalia of PW 2.
Submissions
The appeal was canvassed by way of written submissions, which I have considered.
Analysis.
18. 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 conclusion”
19. 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 , 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.”
20. The legal burden is the burden of proof is on the prosecution and remains constant throughout. According to established principles, burden of proof 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.”
21. Brennan J, addressed the standard of proof required in Criminal cases the case of 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.”
22. 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.”
23. 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 caution has regard to 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 for the accused. It also leaves indelible scars on the victim. Conviction must thus be justified based on indisputable evidence given to the required standards. This is what the former Chief Justice Mohamed of Namibia had in mind in addressing sexual offences in S v Chapman 1997 (2) SA CR 3 (A) at 55:
‘Rape is a serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the constitution and to any defensible civilization.”
24. It is with this background that the court must first analyse the evidence and the proceedings. Then it must address the issues and make findings on each of the issues. The appeal raises only two issues, that is:
a. Whether the offence was proved to the required standards .
b. whether the sentence meted out was lawful.
25. The next issue is the question of proof of the offence of defilement. The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as follows:
8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
26. On the other hand, the appellant was charged with an alternative count under Section 11 of the Sexual Offences Act , which provides as follows:
( 1) Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.
(2) It is a defence to a charge under subsection (1) if it is proved that such child deceived the accused person into believing that such child was over the age of eighteen years at the time of the alleged commission of the offence, and the accused person reasonably believed that the child was over the age of eighteen years
27. In the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013 , it was held that the essential elements constituting the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR are;
a. Proof of the age of the complainant,
b. Proof of penetration and
c. Proof that the appellant was the perpetrator of the offence.
28. The first element, age, is a bit relaxed, especially for children of tender years. It can be proved, though, by a birth certificate, baptism card, or by oral evidence of the child if the child is sufficiently intelligent, or by the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. The key element in proof of age is credibility. In this case, the age of the minor was proved by way of production of a Child Health Monitoring card, which is a document issued at the hospital.it indicates that the complainant was born on 14 th August 2021. At the age of the alleged offence, the complainant was aged 3 ½ years. The appellant also stated in his defence that he knew the complainant well and that he was a child.
29 .On identification, in Anjoroni v Republic 1980 KLR 59 the court thus:
“Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other”
30. The minor testified and identified the appellant as the perpetrator. He stated that he knew him as his daddy and that they lived in the same house. PW 2 also stated that she found the appellant at home, and that the victim informed her that that he had perpetrated the offence. The minor did not just do identification but recognition. The court is satisfied that the appellant was recognized by the minor and PW 2, who knew and lived with him.
31. The last issue is penetration. Section 2(1) of the Sexual Offences Act defines penetration as:
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
32. In the case of Mark Oiruri Mose v Republic [2013] KECA 67 (KLR) , the Court of Appeal [Onyango Otieno, Azangalala & Kantai JJ.A ] held as follows:
“ Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ.”
33. The medical evidence, in form of treatment notes dated 11 th February 2025, and P3 Form and PRC Form both dated 15 th February 2025. In the three primary documents, the findings were that the complainant had suffered tears and lacerations on the anal region at 6 o’clock and 12 o’clock, which was consistent with anal penetration.
34. In my view the medical evidence corroborate the allegation of penetration. However Section 124 of the Evidence Act makes this quite clear that:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth .” [Emphasis added]
35. It is therefore clear that the evidence of the complainant, if a minor, requires corroboration, save that in sexual offences where the minor is the victim of the offence, the evidence of that minor, if believed by the trial court, can, without corroboration, found a conviction.
36. Dealing with a similar issue in the case of Mohamed vs. R, (2008) 1 KLR G&F 1175 , the Court held that:
“It is now well settled that the courts shall no longer be hamstrung by requirements of corroboration where the victim of a sexual offence is a child of tender years if it is satisfied that the child is truthful.”
37. Having so said, I find that there was sufficient evidence to support the element of penetration, and hence the conviction on the charge of defilement was safe and is hereby upheld. The trial magistrate was right to dismiss, which I find an afterthought.
38. I note that the court meted out a life sentence. The minimum mandatory sentence provided under section 8(2) of the Sexual Offences Act is a life sentence. There is no other sentence provided.
39. 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) [2024] KESC 34 (KLR), 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 committed.
12. 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.
40. Further, the same court delivered its decision in Republic v Manyeso [2025] KESC 16 (KLR), where is stated as follows:
Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution . Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence:
“94. We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature.
95. We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.
96. We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing.
41. Life sentence was the only sentence provided. The sentence is befitting
42. I have said enough to demonstrate that the impugned judgment is for upholding the conviction
Determination
In the circumstances, I make the following orders: -
a. The Appeal on conviction lacks merit and is accordingly dismissed.
b. The sentence meted out is lawful.
c. Right of appeal 14 days.
d. The file is closed.
DELIVERED, DATED AND SIGNED ON 17 TH DAY OF SEPTEMBER, 2026.
JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU-JUDGE
In the presence of: -
Miss Omol for the State.
Appellant in person.
Court Assistant – Mr. Kibet.
MAKUENI HCCRA NO. E068 OF 2025 2
2. The particulars of the offence were that the appellant, 11 th February 2025 at Kavuvoni Village, Kisau Location in Mbooni East Sub County , Makueni County , intentionally and unlawfully caused his penis to penetrate the anus of V.M.N , a child aged 3 ½ years.
3. The appellant was charged with an Alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act . , 11 th February 2025 at Kavuvoni Village, Kisau Location in Mbooni East Sub County , Makueni County , intentionally and unlawfully did an indecent act to anus of VMN , a child age 3 ½ year, by touching his private parts namely anus with his penis.
4. The appellant was convicted of the defilement of child contrary to Section 8(1) as read with Section 8(2) of the sexual Offences Act no. 3 of 2006 to serve life imprisonment.
5. The appellant was aggrieved by the conviction and filed this appeal. He set out the following grounds of appeal:
a) That the learned trial magistrate erred in law and facts by convicting the appellant on evidence that did not meet the minimum threshold to sustain a conviction.
b) That the learned trial magistrate erred in law and facts by sentencing the appellant to a harsh and excessive sentence.
c) That the learned trial magistrate erred in law and facts by not considering the appellants sworn defence.
d).That the trial court erred in both law and facts failing to consider the contradictions and inconsistencies in the whole prosecution that did not warrant conviction.
e).That the appellant be furnished with trial proceedings record for more grounds to be adduced during the hearing of the appeal.
6. PW 1 Caroline Wavinya is the mother to the victim complainant. She told the court that the appellant is her former husband, with whom they started staying together in April 2024, though he was not the biological father to the complainant. On 11 th February 202, she left for work and left the complainant with the appellant. When she came back in evening, she found the victim crying.
7. Upon enquiry, the victim explained to her that they had gone to the farm with the appellant, and that the appellant had ordered to look to the front and he removed his trousers and inserted his stick in the complainant’s buttocks. She noted that the complainant was passing gas and had stool on his buttocks.
8. When she confronted the appellant, he became very violent towards her, and threatened the witness and the victim. The witness took the child and escaped. She reported the matter to the village manager, who advised her to report the same to the police, and later the child was referred to hospital for treatment. According to PW1, the child was born on 16 th August 2021.
9. In cross examination, the witness stated that when she arrived at home that evening, the child ran towards while crying. That she was also chased from the homestead on the same day, after she reported the matter to the police.
10. V.M is the victim of the alleged offence. He identified the appellant in court and described him as his dad. He went on to tell the court that the appellant had asked him to look to the front and that he inserted his stick in his buttocks. Though the child did not get to see the stick, though he experienced pain. He later reported the incident to his mother.
11. No. 107467 P.C Evelyne Njoki Nyaga, a police officer based at Mumbuni police station informed the court that she investigated the case. That the complaint was reported to the police station by PW1. In the course of investigations, she obtained a Health Clinic card as proof that the child was born on 3 rd August 2021. She referred the child to hospital and later, charged the appellant with the offence before court.
12. Pw 4, Mr. Francis Kilonzo is a clinical Officer based at Kisau Sub – county hospital. He produced the P3 form filled in respect of the victim, who was seen at the facility. Upon examination, the victim was disoriented. His inner garments were wet and the anus had lacerations at 3 o’clock to 6 o’clock. It was at the facility that the P3 form as filled together with the post rape care form. The minor was treated. The medical documents were produced as exhibits in court. In cross examination, the medical officer stated that the probable weapon used was a blunt object.
13 .Upon the closure of the prosecution's case, the court gave a ruling on whether there was a case to answer. Section 211 of the Criminal Procedure Code was complied with. The appellant opted to give sworn testimony, and call two witnesses in his defence case.
14. DW1 was the Appellant. He testified that on the 11 th February 2025, he had left his house at 7 a.m and that he returned home at 7 p.m. He found PW 1 and PW 2 in the house in company of his parents. That PW 1 left in company of PW 2 and never returned home until 16 th February, when PW 2 went back home in the company of police officers and caused him to be arrested.
15. He went on to state that he had grudges with PW2 who was unfaithful in the marriage, and always came home late. That upon his arrest, pw 1 took 3 goats, chicken and household goods and relocated to Mwaani market where she resided with another man.
16. DW 2 Onesmus Mutuku is the father to the appellant. He told the court that on 11 th February 2025, PW 1 and the appellant left home for work. That he was left at home in company of pw 2. Later that evening, Pw 1 came back home, and shortly thereafter, the appellant came home. Later, the same evening, PW1 left in company of PW 2 and never returned home until 16 th February 2025, when she went with the police and caused the appellant to be arrested, while DW 2 was in church.
17. DW3 is the mother to the appellant. She corroborated the evidence of DW 2, and told the court that she was with PW 2 all day. In cross examination, she told the court that she did not examine the genitalia of PW 2.
Submissions
The appeal was canvassed by way of written submissions, which I have considered.
Analysis.
18. 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 conclusion”
19. 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 , 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.”
20. The legal burden is the burden of proof is on the prosecution and remains constant throughout. According to established principles, burden of proof 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.”
21. Brennan J, addressed the standard of proof required in Criminal cases the case of 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.”
22. 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.”
23. 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 caution has regard to 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 for the accused. It also leaves indelible scars on the victim. Conviction must thus be justified based on indisputable evidence given to the required standards. This is what the former Chief Justice Mohamed of Namibia had in mind in addressing sexual offences in S v Chapman 1997 (2) SA CR 3 (A) at 55:
‘Rape is a serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the constitution and to any defensible civilization.”
24. It is with this background that the court must first analyse the evidence and the proceedings. Then it must address the issues and make findings on each of the issues. The appeal raises only two issues, that is:
a. Whether the offence was proved to the required standards .
b. whether the sentence meted out was lawful.
25. The next issue is the question of proof of the offence of defilement. The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as follows:
8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
26. On the other hand, the appellant was charged with an alternative count under Section 11 of the Sexual Offences Act , which provides as follows:
( 1) Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.
(2) It is a defence to a charge under subsection (1) if it is proved that such child deceived the accused person into believing that such child was over the age of eighteen years at the time of the alleged commission of the offence, and the accused person reasonably believed that the child was over the age of eighteen years
27. In the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013 , it was held that the essential elements constituting the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR are;
a. Proof of the age of the complainant,
b. Proof of penetration and
c. Proof that the appellant was the perpetrator of the offence.
28. The first element, age, is a bit relaxed, especially for children of tender years. It can be proved, though, by a birth certificate, baptism card, or by oral evidence of the child if the child is sufficiently intelligent, or by the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. The key element in proof of age is credibility. In this case, the age of the minor was proved by way of production of a Child Health Monitoring card, which is a document issued at the hospital.it indicates that the complainant was born on 14 th August 2021. At the age of the alleged offence, the complainant was aged 3 ½ years. The appellant also stated in his defence that he knew the complainant well and that he was a child.
29 .On identification, in Anjoroni v Republic 1980 KLR 59 the court thus:
“Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other”
30. The minor testified and identified the appellant as the perpetrator. He stated that he knew him as his daddy and that they lived in the same house. PW 2 also stated that she found the appellant at home, and that the victim informed her that that he had perpetrated the offence. The minor did not just do identification but recognition. The court is satisfied that the appellant was recognized by the minor and PW 2, who knew and lived with him.
31. The last issue is penetration. Section 2(1) of the Sexual Offences Act defines penetration as:
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
32. In the case of Mark Oiruri Mose v Republic [2013] KECA 67 (KLR) , the Court of Appeal [Onyango Otieno, Azangalala & Kantai JJ.A ] held as follows:
“ Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ.”
33. The medical evidence, in form of treatment notes dated 11 th February 2025, and P3 Form and PRC Form both dated 15 th February 2025. In the three primary documents, the findings were that the complainant had suffered tears and lacerations on the anal region at 6 o’clock and 12 o’clock, which was consistent with anal penetration.
34. In my view the medical evidence corroborate the allegation of penetration. However Section 124 of the Evidence Act makes this quite clear that:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth .” [Emphasis added]
35. It is therefore clear that the evidence of the complainant, if a minor, requires corroboration, save that in sexual offences where the minor is the victim of the offence, the evidence of that minor, if believed by the trial court, can, without corroboration, found a conviction.
36. Dealing with a similar issue in the case of Mohamed vs. R, (2008) 1 KLR G&F 1175 , the Court held that:
“It is now well settled that the courts shall no longer be hamstrung by requirements of corroboration where the victim of a sexual offence is a child of tender years if it is satisfied that the child is truthful.”
37. Having so said, I find that there was sufficient evidence to support the element of penetration, and hence the conviction on the charge of defilement was safe and is hereby upheld. The trial magistrate was right to dismiss, which I find an afterthought.
38. I note that the court meted out a life sentence. The minimum mandatory sentence provided under section 8(2) of the Sexual Offences Act is a life sentence. There is no other sentence provided.
39. 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) [2024] KESC 34 (KLR), 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 committed.
12. 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.
40. Further, the same court delivered its decision in Republic v Manyeso [2025] KESC 16 (KLR), where is stated as follows:
Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution . Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence:
“94. We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature.
95. We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.
96. We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing.
41. Life sentence was the only sentence provided. The sentence is befitting
42. I have said enough to demonstrate that the impugned judgment is for upholding the conviction
Determination
In the circumstances, I make the following orders: -
a. The Appeal on conviction lacks merit and is accordingly dismissed.
b. The sentence meted out is lawful.
c. Right of appeal 14 days.
d. The file is closed.
DELIVERED, DATED AND SIGNED ON 17 TH DAY OF SEPTEMBER, 2026.
JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU-JUDGE
In the presence of: -
Miss Omol for the State.
Appellant in person.
Court Assistant – Mr. Kibet.
MAKUENI HCCRA NO. E068 OF 2025 2