Cheruiyot v Republic (Criminal Appeal 7 of 2020) [2025] KECA 1780 (KLR)

The court applied the settled principle that age may be proved by documents such as a birth certificate, baptism card, oral evidence of the child if sufficiently intelligent, evidence of parents or guardian, or medical evidence. The mother and father gave the child's age as 4½ years while the doctor's P3 Form and age assessment report indicated 5 years. This combination constituted sufficient credible and reliable proof of age, satisfying the first ingredient of defilement.

Relying on Bassita vs. Uganda, the court held that penetration may be proved by direct or circumstantial evidence and that medical corroboration, though desirable, is not a hard and fast rule. The complainant's testimony, PW6's observation of whitish discharge, and the P3 Form showing trauma and sperm collectively established penetration as defined under section 2 of the Sexual Offences Act, which includes partial insertion of genital organs.

Citing Longole & another vs. Republic and Waingwe vs. Republic, the court reaffirmed that recognition of an assailant is more satisfactory, assuring and reliable than identification of a stranger. Both the complainant and PW6 were categorical that the appellant, their herdsman of about four years, committed the act in broad daylight. The element of proper identification was thus established to the required standard.

The court noted the issue was not raised before the trial court nor as a ground before the High Court, precluding its introduction on second appeal per Alfayo Gombe Okello. Nevertheless, section 150 empowers a court at any stage to summon or recall a witness whose evidence is essential to the just decision of the case, subject to cross-examination. The evidence of the complainant and PW6 was essential on identification, and the appellant was given the chance to cross-examine, so there was no prejudice.

On a second appeal the court examines whether the first appellate court discharged its statutory duty under section 354 of the Criminal Procedure Code to re-evaluate the evidence and reach its own conclusions. Upon consideration of the record, the court found the High Court had independently reassessed the complainant's credibility, the medical evidence and the consistency of testimony, so the conviction rested on sound and solid evidence and the High Court's judgment could not be disturbed.

Relying on the Supreme Court's decision in Republic vs. Mwangi; ISLA (Amicus Curiae), the court held that minimum sentences set the floor rather than the ceiling, that sentencing parameters are for Parliament, and that striking down a statutory sentence requires evidence, sound legal principles and consideration of public interest. Having been convicted of defiling a child under eleven, the only punishment under section 8(2) was life imprisonment, which was proportionate and justified.