Denish Odhiambo v Republic

Evidence 6. At trial, PW1 was the minor. She testified that she was 15 years old and referred to her birth certificate. According to her, the birth certificate was backdated as it was taken when she was 15 years. On 1.6.2024, nothing happened to her. She did not know why she was taken to the police station. She did not know the Appellant. 7. At the request of the prosecution counsel, the court declared the minor a hostile witness. She was then referred to the witness statement that she recorded at the police station. She stated that she wrote the witness statement at the police station and signed it. Therein, it was stated that she visited the Appellant. He caressed her, removed her clothes, removed his clothes as well, opened her legs and inserted his penis into her vagina. 8. On cross examination, it was her case that she did not participate in the investigations. She did not know the Accused person. The recorded witness statement was hers but referred to another person who was not the Appellant. 9. PW2 was KOA. He was the minor’s father. He left with his wife for a funeral on 12.7.2024. The person they left to man the house called at 9.00 pm informing them that the minor came back from school at 6.00 pm and went away, was not at home. They returned on 14.7.2024 and found the minor back. They questioned the minor where she had gone and she took them to the Appellant’s house. He reported at Awendo Police Station. The Appellant was arrested. On cross examination, it was his case that he could not ascertain whether the minor slept at home. He asked her and she said she was home. 10. PW3 was EOA called her when she was away at a funeral with PW2 on 12.7.2024 with information that the minor had eloped from home and unavailable tonight. They returned home on Sunday and asked the minor where she was. She remained silent. 11. PW4 was Dancun Nyabola, the Clinical Officer. He examined PW1 on 17.7.2024 relying on the P3 Form, PRC form, and ultrasound. She had blood in her external genitalia. The hymen was missing and cervix was closed. Pregnancy was positive. According to him, PW1’s hymen was broken a long time ago. 12. PW5 was No. 11xxxxxx PC Erastus Musa attached to Awendo Police Station. He was the Investigating Officer. He took up investigations on 14.7.2024. It was his case that following investigations, he reasonably believed that the Appellant was culpable and he arrested the Appellant to face the charges before court. He produced birth certificate but as he doubted it, age assessment was done. She was approximated to be 15 years. 13. The Appellant also testified on oath as DW1. He testified that he met the minor when he was arrested. The minor was not present when he was arrested. He did not know the complainant. He denied the charges. Analysis 14. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6075/eng@2026-04-29 2

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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. 15. 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. 16. 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. 17. Brennan addressed the standard of proof required in such cases in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that: The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 18. 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: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6075/eng@2026-04-29 3

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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. 19. 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. 20. 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. 21. The Appellant was charged with defilement contrary to Section 8(1) & (3) of the Sexual Offences Act No. 3 of 2006. I note this to be in error as PW1 was said to be 11 years old. I reproduce Section 8 (1)(4) of the Sexual Offences Act as follows: 22. 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. This court dealing with the instant appeal is entitled to consider the evidence in the trial court as a whole as being submitted a fresh to be subjected to exhaustive examination to guide the court towards its own decision on the evidence. In Kiilu & Another vs. Republic [2005]1 KLR 174, the Court of Appeal stated as follows:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6075/eng@2026-04-29 4

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1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. 2. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses. 23. The issue for this court’s determination is whether the prosecution proved the offence of defilement as against the Appellant beyond reasonable doubt. 25. Proof beyond reasonable doubt does not impose a standard of proof beyond the shadow of a doubt. Where the evidence tendered is so strong as to leave only a remote possibility in favour of the accused person, which can be dismissed with the sentence “of course it is possible, but not in the least probable”, then it can be said in law that the case is proved beyond reasonable doubt. It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as doth: “ What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’” 26. The parameters that were to be proved in cases like the instant case were settled in the case of George Opondo Olunga vs Republic [2016] eKLR that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and proof of the identification of the perpetrator. 27. At trial, PW1 was declared a hostile witness. Her evidence consequently became of little probative value and could not stand as the only evidence. It must have been corroborated with other evidence. According to PW1, she did not know the Appellant and the Appellant did not commit the offence. This testimony was contradistinguished with her written witness statement recorded at the police station wherein she described how she visited the Appellant and they had sex. The court placed weight on the evidence of PW2, PW3 and PW4 as corroborating the evidence of PW1. In Abel Monari Nyanamba & 4 others v Republic [1996] KECA 196 (KLR), the Court of Appeal stated thus: The evidence of a hostile witness is indeed evidence in the case although generally of little value. Obviously, no court could found a conviction solely on the evidence of a hostile witness because his unreliability must itself introduce an element of reasonable doubt. The inevitable conclusion after PW4 had been declared a hostile witness was that he became an unreliable witness, whose evidence would be rejected as untrustworthy. He was discredited completely. In our view, PW4 was substantially an unreliable witness and all parts of his evidence should have been rejected. It must follow, therefore, that nothing PW4 said in Court could be accepted against any of the appellants. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6075/eng@2026-04-29 5

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28. However, PW2 and PW3 were not within the precincts of the scene of crime. They were not at home as they had travelled for a funeral. They were only informed by a phone call. The informer was not called to testify in court and there was no other credible evidence that supported the informer’s view. The evidence remained hearsay. Equally, PW4 as medical officer cannot be said to corroborate the direct evidence of the minor that it is the Appellant who defiled her. His role was that of an expert and his opinion cannot connect the Appellant to the charge as the offender. It could only confirm that there was or there was no evidence of penetration. That was the far his evidence could go. 29. The extent of application of an expert opinion in judicial proceedings, and the general trend is that such evidence is not necessarily conclusive and 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.” 30. 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. 31. 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; [1995-1998] 1 EA 29, 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." 32. The expert evidence was good only to the extent that the minor may have been penetrated. However, when and who penetrated the minor remains the evidence of the minor. The minor denied having been defiled. There was no other evidence on which to go. 33. On the issue of identification, it remained a mystery. To this court, the respondent’s duty was not just to prove that the minor knew the appellant. The respondent needed to prove commission of the offence by the Appellant. This was not done. The scene of crime remained unproved as no one connected the Appellant to the scene of crime which was said to be his house. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6075/eng@2026-04-29 6

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34. The probative value of the witness statement of the minor was reduced and could not be taken as the sole evidence that the Appellant had committed the offence. The appellant denied the allegations. The court did not bother to invoke the test under section 124 of the Evidence Act. The rule is the exceptions as set in section 124 of the Evidence Act. The said section posits as follows: 124. 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. 35. 36. The later part, or the proviso is key, in that it requires that the following conditions be met: a. The matter is a sexual offence, b. The only evidence is that of the alleged victim of the offence, c. For reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. That is why the truth should always be recorded and reasons for so believing. None was stated. Even after declaring the witness as hostile and stating that her evidence was of little assistance, the court corroborated it with evidence of witnesses who were not at the scene of the crime. All the three conditions must be present for a conviction to occur. In the case of Tekerali s/o Korongozi & 4 Others –vs- Rep (1952) 19 EACA 259 the importance of the first report was appreciated, where the court posited as follows: “ Their importance can scarcely be exaggerated for they often provide a good test by which the truth or accuracy of the later statements can be judged, thus providing a safeguard against later embellishment or the deliberately made-up case. Truth will often [came] out in the first statement taken from a witness at a time when recollection is very fresh and there has been no opportunity for consultation with others.” 37. On penetration, on the reevaluation of evidence, the only plausible evidence was that of a minor which as described above had little evidentiary value. She was a single identifying witness and the circumstances surrounding the commission of the offence could only be determined by circumstantial evidence. The prosecution proved the case against the Appellant based on circumstantial evidence. The threshold as stated in R vs Kipkering Arap Koske [1949] 16 EACA 135 is that such evidence must exclude co-existing circumstances which would weaken or destroy the inference of guilt. In Sawe vs Rep [2003] KLR 364, the Court of Appeal expressed that: “ In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6075/eng@2026-04-29 7

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reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused. 38. It is the finding and holding of this court that the inculpatory facts were not incompatible with the innocence of the Appellant, there was no other stated explanation upon any other reasonable hypothesis that would lead to a finding of guilt of the Appellant as the person who defiled the minor. 39. On the aspect of age, age is such a crucial component in sexual offences that it points to the extent of punishment for the offenders. This was also the position of the court in Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR), where the Court of Appeal stated as doth: “ Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 40. The age of the minor herein could be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. In Mwalengo Chichoro Mwajembe vs Republic, Msa. App. No. 24 of 2015 (UR) the court held: ‘‘…………. the question of proof of age has finally been settled by decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof…. 41. Medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim. In Francis Omuroni vs Uganda, CR. A 2/200 it was held: “ In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by a birth certificate, the victim’s parents or guardian and by observation and common sense. ….” 42. Consequently, age herein was not proved by the production of the Birth Certificate. The case of the investigating officer was that the Appellant’s birth certificate was doubtful and so an age assessment became necessary. The said birth certificate is not on record. The reason it was doubted was not stated. It could be attributed to the evidence of the minor that it had been backdated as it was applied when she was 15 years. 43. The age assessment showed that the complainant had 30 teeth. This meant that the minor was over 17 years. The maker of the report was not called to clarify on the methodology. His qualifications are unknown. There was thus no proof of the age of the complainant. 44. The report was however produced by PW5 and not the maker. Considering the necessity of proving age as by law remedied, it was critical for the parameters that led to the conclusion of the age of the minor herein to be laid before the court. There must have been basis for which a minor would be described as not just a minor but a minor aged 15 years. The parents of the minor did not testify on the aspect of age. The basis for the minor’s age stated to be 15 years was not laid before court and I disregard the evidence presented in the assessment report that was not produced by the maker and whose procedure https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6075/eng@2026-04-29 8

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and findings were not stated in court. Its probative value was reduced. The Court of Appeal in the case of Edwin Nyambogo Onsongo Vs Republic (2016 eKLR stated as follows on the proof of age: “ ... the question of proof of age has finally been settled by recent decision of this court to the effect that it can be proved by documents, evidence such as birth certificate, baptism, card or by oral evidence of the parents or the guardian or medical evidence among other credible form of proof. We think that what ought to be stressed is that whatever the nature of the evidence preferred in proof of the victims age it has to be credible and reliable. 45. The finding that the appellant was 15 years of age was not supported by evidence. The court did not exercise its discretion in accordance with the law. In the case of Ramakant Rai vs. Madan Rai, Cr LJ 2004 SC 36, the Supreme Court of India rendered itself thus on the issue of judicial discretion: “ Judicial discretion is canalized authority not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed: “The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not a yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains. 46. In the circumstances the appeal against the conviction is allowed. The question of such sentences was addressed in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [supra] where the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] posited as follows: 11. Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6075/eng@2026-04-29 9

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constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below. 47. Further, the same position was reiterated by the supreme court in 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: 48. 94. We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature. 95. We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism. 96. We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing. 65. From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts. However, having allowed an appeal on conviction, the issue of sentence is moot. I find no utility in dealing with the issue of sentence. The Appellant is set free. Determination 49. In the upshot I make the following final orders: a. This appeal is allowed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6075/eng@2026-04-29 10

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b. The conviction and sentence are set aside. c. The Appellant is set free unless otherwise lawfully held. d. Right of appeal 14 days. e. File is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 29TH DAY OF APRIL, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Appellant present Mr. Kihara for the State Cpl. Hillary Cheboi present Court Assistant – Michael/Martin/Osoo/Omondi Page 8 of 8 M. D. KIZITO, J. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6075/eng@2026-04-29 11

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