Brian Robi Mwita Alias Nyayo v Republic

in Kuria West Subcounty within Migori County, intentionally and unlawfully caused his penis to penetrate the vagina of LBM, a girl aged 16 years. 4. 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 are that the Appellant, on 27.05.2024, at Mabera area, in Kuria West Subcounty within Migori County, intentionally touched the vagina of LBM, a girl aged 16 years. 5. The Appellant was arraigned in court on 03.06.2024 and pleaded not guilty. The court was informed in a rather unprocedural way that the appellant had an offence of stealing stock in another court. Given that he had not been convicted, this was an unnecessary prejudice to the appellant. Nevertheless, he was granted Ksh. 100,000/= bond and release on the same day. 6. PW1 testified that on 27.05.2024 at about 5 pm she was sent to the market and on the way, the appellant waylaid her and pulled a knife. She screamed as they struggled. The appellant pushed her to the grounds and removed her clothes. The appellant put his penis into the vagina of LB and threatened to kill her. He threatened to tell other people and said that he had a pistol and would shoot the complainant on the head. 7. The appellant threatened LB that he had killed another lady over Ksh. 200/= and told her that he will kill her and nothing will happen. She managed to escape while naked and met another lady called Josephine who gave her clothes and she went home leaving her own clothes at the scene. They went to the police the following day and recorded a statement. She was injured on the hands. She identified the appellant in the dock. 8. On cross examination she stated that she had seen the appellant on numerous occasions before and it was not the first time in court. The witness stated that the appellant was wearing the same clothes he was wearing on the day of testimony. 9. On re-examination, the witness stated that she had known the appellant for a long time and knows his home. 10. PW2 was Josephine Gesare. She testified that she lived in Mabera and recalled that on 27.05.2024, she was washing. A girl came running, screaming and she was naked. She gave her clothes and asked what happened. She told her that a certain boy defiled her and she left clothes at the scene. She went to her home and the minor went to their home. The complainant did not tell her the name of the boy who defiled her. 11. On cross examination, she stated that the girl came naked and running and told her that someone defiled her and she left clothes at the scene. She did not go to see the defiler as she was scared and as such did not see the assailant. She only saw the appellant in court. 12. PW3 was Dorcas Moraa from Mabera, who testified that she was a farmer and she had sent the complainant to the market on 27.05.2024. At about 6.15 pm she came in a company of two women wearing different clothes from the ones she wore to the market and was not having her clothes, which she had worn earlier to the market. 13. LB explained to the mother that on the way to the market she met Brian who took her to the bush and defiled her. The said Brian was known to the witness. LB told her that Brian removed her clothes and she ran while naked. A lady washing by the river gave her clothes. The following day they went to Mabera Police Station and were sent to hospital. The minor was treated and issued with documents. She produced the P3, PRC, certificate of birth and treatment notes. She identified Brian as the accused person in the dock. The appellant did not have questions in cross examination. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2981/eng@2026-03-03 2

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14. PW4 was PC (W) Dorothy Adhiambo who testified that she is stationed at Mabera police post. She recalled that on 29.05.2024 at 10.00 am, she discovered that she had been assigned to investigate the matter. The same was reported on 28.05.2024 at 1600 hours. she called the complainant and witnesses and recorded statements. She issued with a P3 from which was filled by a doctor. She visited the scene with the complainant. There are a lot of trees there. She saw signs of struggle and a small path passing though the forest. The complainant told her she was passing on the path. The witness saw a stream near the scene. She produced PRC, P3 and treatment notes. 15. PW5 was Emmaculate Anyango, a Clinical Officer at Bugumbe Health Centre. She stated that on 28.05.2024 she received a patient, LB, a girl aged 17 years. She examined her and noted normal external genitalia, bruises on the vagina indicating forceful penetration, hymen was broken but not freshly broken. There was white discharge indicative of an infection. There was laboratory examination. She concluded that there was penetration and the minor was put on treatment. PRC, form, P3 form and treatment notes were filled. 16. On cross examination, she stated that bruises on the vaginal wall indicated forceful penetration. The patient was defiled on 27.05.2024 and taken to hospital on 28.05.2024. 17. The appellant was placed on his defence. The appellant was absent on 17.09.2024. A warrant was issued. On 1.10.2024, he turned up and the warrant was lifted. He chose to give sworn evidence and defence hearing was set for 14.11.2024. He was again absent and a warrant was issued. He was brought under warrant on 14.1.2025. He was facing other fresh charges. 18. The appellant gave sworn testimony. He stated that on 27.5.2024 he was at hospital admitted at Bugumbe Health Centre. 19. He stated that he was admitted on 25.05.2024 for three days. The complainant therefore gave false testimony. Therefore, he stated that the complainant was mistaken. It was his evidence that this was a case of mistaken identity. He said that he did not bring notes to show that he was in hospital. He stated that he was treated by one Mercy. 20. The court found him guilty. The court found that the appellant had two other cases, that is, SO E004 of 2025 and Criminal case number E047 of 2025. In the two cases, he was sentenced to 25 years imprisonment and 3 years respectively. 21. In answer to the issue of sentence, he went on to mitigate that he had a chest problem. He prayed for non-custodial sentence. The court sentenced him to serve 15 years and stated that he had been in custody for about a year, therefore was to serve for 14 years. Submissions 22. The appellant filed submissions that the first report at Bugumbe Health Centre was sexual assault in OPD number 5358. The injury recorded was grievous harm hence the charge sheet was defective. He stated that the hymen was broken but not freshly broken and there was no bleeding. He stated that there was no way the medical officer could indicate grievous harm and at the same time indicate that there was no bleeding. He prayed to be acquitted. 23. The state filed submissions on 19.12.2025. Analysis 24. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2981/eng@2026-03-03 3

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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. 25. 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. 26. 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2981/eng@2026-03-03 4

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27. Brennan J addressed the standard of proof required in such cases, in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that: The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 28. 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. 29. 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. 30. 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. 31. 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2981/eng@2026-03-03 5

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32. The law under which the appellant was charged is provided for under Section 8 of the Sexual Offences Act as hereunder: 8. (1) 33. 34. 35. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (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. (5) … 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. (3) The belief referred to in subsection (2) is to be determined having regard to all the circumstances, including the steps the accused person took to ascertain the age of the complainant. (4) Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act (Cap. 92) and the Children's Act (Cap. 141) (5) The provisions of subsection (2) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity. 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 as; a. Proof of the age of the complainant, b. Proof of penetration and c. Proof that the appellant was the perpetrator of the offence, d. and {I must add that the penetration is of a sexual organ, [of the vagina or anus] by a sexual organ}. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2981/eng@2026-03-03 6

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proof. The key element in proof of age is credibility. In more grown-up children, the difference between young adults and children is razor sharp. The court must be vigilant to prevent adults masquerading as children. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016)eKLR stated as follows in respect of proving the age of a victim in cases of defilement: ... The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable. 36. While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic, Malindi, the Court of Appeal in Criminal Appeal No. 504 of 2010 stated as follows: Age of the victim of the 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. 37. The age of the minor is relevant to the extent that it is to make a distinction between those aged 18 and under 18. If, for any reason, it is proved that a person is a child under the age of 18, but there is a difference in respect of whether the child is 13 or 14, or 15, 16 or 17, then such a difference is irrelevant. Where the age flows into the next age for purposes of the offence, an acquittal cannot follow. The offence of defilement is complete upon proof that a person is under the age of 18. The actual age is required only when the court is considering, for purposes of sections 8(2), 8(3), and 8(4). The Court of Appeal in the case of Stephen Nguli Mulili v Republic [2014] KECA 408 (KLR), addressed this aspect as follows: In the case of Kaingu Elias Kasomo V R, Malindi CR. NO. 504 OF 2014, the Court of Appeal stated that age is a key ingredient to the offence of defilement and failure to prove it beyond reasonable doubt amounts to failing to prove the offence. However, as the Court clarified in TUMAINI MAASAI MWANYA V R, MSA CR.A. NO. 364 OF 2010, proof of age for the purpose of establishing the offence of defilement, which is committed when the victim is under the age of 18 years, should not be confused with proof of age for the purpose of appropriate punishment for the offence in respect of victims of defilement of various statutory categories of age. 38. It is only when there is evidence of doubtful origin that a doctor can determine the age scientifically. In the case of Francis Omuroni Vs Uganda Court of Appeal No. 2/2000, the court held that: In defilement cases, medical evidence is paramount in determining the age of the victim. The doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from Medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense. 39. The birth certificate shows that the minor was born on 04.09.2007. Consequently she was 4 months shy of 17 years. She was therefore a minor within the meaning of Section 8(1) as read with section 8(4) of the Sexual Offences Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2981/eng@2026-03-03 7

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40. The medical evidence and birth certificate show that the minor was 16 years old, thus the complainant was below 18 years. Hence, the age was proved for defilement. For punishment, the age of 16 years was proved. It is irrelevant, for both conviction and sentence, whether the minor was 16 or 17 years old. The distinction is immaterial. 41. The medical evidence showed that there was an old, broken hymen. It does not of itself show penetration or lack thereof. However, there were bruises showing forceful entry. This indicated violent sexual activity. The evidence from the P3 and the PRC showed evidence of penetration. The appellant took issue with the degree of harm. It is irrelevant that there was even no harm. Even where a sexually experienced and active person is involved, it is not an excuse to defile her. Indeed, to disabuse the appellant, even where a commercial sex worker is involved and is consenting freely to other person, a sexual offence can still be committed if she does not consent. The minor is not to blame for the appellant’s bodily inadequacies. 42. Under section 2 of the Sexual Offences Act, penetration means the partial or complete insertion of the genital organs of a person into the genitalorgans of another person. Therefore there is no need of physical harm. 43. The second aspect is the question of primacy of medical evidence. Medical evidence is useful but not solely decisive in conviction. Section 124 of the Evidence Act provides as follows regarding corroboration in sexual offences: Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is 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. 44. It is not necessary that the court below indicates that it is using section 124 of the Evidence Act. In this case the court found that the appellant was properly identified. The complainant’s evidence was cogent. The appellant was a person known to the complaint. She identified to the mother the person who defiled her. This was immediately after to being defiled. PW2 saw her naked and gave her clothes. She was told that a boy defiled her. The scene was later identified by PW5, who also identified the struggle at the locus in quo. 45. Of importance, PW3 was not cross-examined. This means that the evidence she gave was unchallenged. The statement the complainant made was to PW2 and PW3. She knew it was Brian who defiled her. Brian was known to both PW1 and PW2. This was at 5 pm. The complainant struggled with the assailant and escaped. She was seen immediately by PW2 and shortly thereafter by PW3. This was during the day and by a person known to the complainant. This was recognition and not identification. 46. The appellant did not cross examine on any question that can raise credibility of the evidence of PW1. What then is the defence given? The defence is an incomplete alibi. Whether the appellant was in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2981/eng@2026-03-03 8

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hospital, he was still out by 27.05.2024. He was economical with the truth. Section 111 of the Evidence Act provides for such a scenario as follows: When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him: Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist: Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defense creates a reasonable doubt as to the guilt of the accused person in respect of that offence. 47. The appellant alleged that he was at hospital. He does not indicate time he was at hospital and what time he left. He did not produce the treatment notes. The treatment notes are not part of an alibi as they are within his knowledge. Had he produced them, then the burden of proving falsity will have been on him. 48. The duty to prove falsity of an alibi still remained with the prosecution. The appellant as an accused had no duty to help the state carry out its case. If evidence was tendered that was surprising to the state, they had a chance under section 212 of the Criminal Procedure Code to call for rebuttal evidence. The section provides as follows: If the accused person adduces evidence in his defence introducing a new matter which the prosecutor could not by the exercise of reasonable diligence have foreseen, the court may allow the prosecutor to adduce evidence in reply to rebut that matter. 49. However, in this case, there was no evidence that was surprising to the state as the appellant did not cover timelines for the third day, 27.05.2024. Being admitted for three days does not rule out the presence on the third day. The evidence of PW1 was not displaced. The alibi came later in the day. Though it must be considered, it is considerably of less weight. 50. Concerning the question of the rights of the prosecution to receive in advance defence evidence as addressed in the case of Thomas Patrick Gilbert Cholmondeley v Republic [2008] KECA 319 (KLR), the court of appeal [R.S.C. Omolo, E. O. O’Kubasu and J. W. Onyango Otieno] posited as follows: So, if at the beginning of the trial, the Constitution obliges everybody to assume that an accused person is innocent, what case is he to disclose in advance? Mr. Tobiko’s position appears to be that if the accused person chooses to give evidence and call witnesses then he ought to be able to disclose his case to the prosecution. That contention, however, ignores one basic distinction. The privileges, if we may so designate them, of the accused person are conferred on him by the Constitution. As soon as he is arrested, he shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence with which he is charged. Nobody is ever likely to arrest the Republic of Kenya and charge it with a criminal offence so that it would require it to be informed of the nature of the offence against it. The question of reciprocity is, therefore, misplaced. … https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2981/eng@2026-03-03 9

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That approach by the learned Judge creates the dangerous theory that what is convenient and would expedite the disposal of a matter is lawful. The proposition ignores the fact that the rights of an accused person are considered to be so important that they are protected under section 77 of the Constitution. Against whom are those rights protected? The answer to the question must be obvious. The rights can only be protected against those who have the unlimited capacity and resources to deprive individual Kenyans of their life, liberty, security of the person, freedom of conscience, freedom of expression, of assembly and of association. We know who is capable of locking up individual Kenyans in the Nyayo House Dungeons. We know who is capable of telling Kenyans: “If you rattle a snake, you must be prepared to be bitten by it.” …. We would repeat these sentiments here to emphasize the point that the courts in the country in spite of their perceived previous failures, must now rigorously enforce and enforce against the state the fundamental rights and freedoms of the individual guaranteed by the Constitution. Those rights cannot and must not be allowed to be diluted by purported exercise of inherent powers by judicial officers allowing the state to claim reciprocal privileges. The state is the usual and obvious violator against whom protection is provided in the Constitution and it ought not to be allowed to claim the same privileges. We know the good Book says that in the end of times, the lion shall graze and lie peaceably together with the lamb. But our recent history is still too fresh in our mind and we in the courts must try to keep the lion away from the lamb. In other words, there is not and there can be no question of reciprocal rights, or a level playing field or any such theory as between an accused person and the state. No statute gives the state such privileges, and the Constitution, wisely in our view, does not give the prosecutors such powers. They cannot be given through the inherent power of the court. Even in civil matters, there is a specific provision in the Civil Procedure Act, Chapter 21 Laws of Kenya, recognizing the existence of the inherent power of the court: “ To make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” – see section 3A. There is no similar provision in the Criminal Procedure Code, Cap 75 Laws of Kenya and we think the omission is deliberate. But even if there was such a power with regard to criminal matters, we do not accept that a judge would be entitled to create non-existent rights and confer them upon a party as the learned Judge purported to do here. 51. However, the state has no duty to prove a false alibi or a non-alibi alibi. In classification of hospitals and health facilities, it is understood that health centres do not have boarding facilities. Level 1 and Level 2 hospitals do not admit patients and as such the allegation of admission is false. Further in this case, there was identification which was not displaced. 52. The second aspect is that the appellant impugned the medical evidence. 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 necessarilyconclusive 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2981/eng@2026-03-03 10

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53. 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. 54. 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, 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 it. 55. The complainant gave cogent evidence placing the appellant in the locus in quo. The appellant, on the other hand, gave a non-alibi alibi. He said he was admitted at the health centre, which by definition cannot admit patients. He had no timelines on where he was at 5 pm, when the offence occurred and he was positively identified. 56. It is true that the burden of proving the falsity of an alibi is on the prosecution. This was addressed in the case of Victor Mwendwa Mulinge –v- R, [2014] eKLR as follows: It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution.... 57. However, the belated attempt to set up an alibi did not materialize. The difficulty with raising an alibi defence is that, once it collapses, other defences that may have been available in law cannot be meaningfully tested, as the appellant’s account is rendered untenable while the complainant’s evidence remains unchallenged and intact. 58. The minor testified that the appellant was known to him and was pulled from the road, thrown down, her clothes removed at the face of the knife and in the struggle that made her run to PW2, who in turn clothed her before releasing her to the village elder and the mother. Such evidence remain unrebutted and is unwavering. The court then has to deal with the issue raised obliquely, the question of sentence. The nature of sentences under the Sexual Offenses Act is circumscribed. This particular offence under section 8(4) of the Sexual Offences Act provides for a minimum sentence of 15 years imprisonment. The question of such sentences was addressed in the case of Republic v Mwangi; Initiative for Strategic Litigation in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2981/eng@2026-03-03 11

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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: 59. 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. Further, the same position was reiterated by the supreme court in its decision in Republic v Manyeso [2025] KESC 16 (KLR), where it 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2981/eng@2026-03-03 12

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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. 60. 61. 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. The sentence meted out was the minimum sentence. The court complied with section 333(2) of the Criminal Procedure Code, albeit more generously. The appellant was sentenced to 15 years imprisonment and ordered to serve 14 years. The sentence under section 8(4) is provided as follows: (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) … (3) … (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. However, the period of 15 years is sacrosanct. The matters related to section 333(2) of the Criminal Procedure Code do not obfuscate the question of minimum sentence. An accused must serve the minimum sentence and not a day earlier. Section 333(2) of the Criminal Procedure Code provides as follows: 2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. 62. It must therefore not be the reverse. The sentence must be meted out and then take account of the period spent in custody, not vice versa. Taking into account is mathematical and not arbitrary. Therefore, a sentence of 14 years is illegal. The same is set aside and replaced with 15 years mandatory sentence. 63. The court notes two important periods in the sentence. The appellant was arrested on 31.05.2024. Thereafter he was released on bond on 25.6.2024. This is a period of 26 days. Subsequently the appellant’s bond was canceled on 14.01.2025. The appellant has been in custody ever since. However, on 22.05.2025 he was convicted of a different offence. Therefore the last day of pretrial detention is https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2981/eng@2026-03-03 13

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22.05.2025. The period between arrest on 31.05.2024 and 25.6.2024, and between 14.01.2025 and 22.5.2025, a period of 127 days is the only pretrial detention period excluded. 64. Since the appellant is serving two sentences, the period of 15 years does not begin to run until the earlier sentences are served. Therefore the 15 years less 127 days sentence shall run consecutive to the sentence meted out earlier in SO E004 of 2025 and CR E047 of 2024. Consequently, the appeal on sentence is untenable and therefore dismissed. Determination 65. In the circumstances, I make the following orders:a. The appeal is dismissed on both conviction and sentence. However, the sentence of 14 years is illegal. The same is set aside and replaced with 15 years sentence. The period between arrest on 31.05.2024 and 25.6.2024, and between 14.01.2025 and 22.5.2025, being less 127 days shall be taken into account. The sentence shall run consecutive to the sentences meted out earlier in SO E004 of 2025 and CR E047 of 2024. b. 14 days right of appeal. c. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 3RD DAY OF MARCH, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of:Mr. Kihara for the State Appellant – present PC Ondari from Kisumu Maximum Court Assistant – Michael https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2981/eng@2026-03-03 14

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