Michael Mokaya Mbuya v Republic

b. That the learned trial magistrate erred on both law and facts by shifting the burden of proof to the appellant. c. That the learned trial magistrate erred on both law and facts by sentencing the appellant to the minimum mandatory sentence without considering that his hands are now untied. d. That the learned trial magistrate erred on both law and facts by relying on unfounded evidence that was marred with contradictions and inconsistencies. e. That the learned trial magistrate erred on both law and facts by relying on case that violated, infringed and denied the right to fair trial under article 50(2) of the 2010 constitution. 5. The minor testified that she was 12 years old. Her father left her money to buy food. They did not find the shopkeeper and went to get pears. She found the appellant who told him to pick pears for him. The appellant told the siblings that there was something important he was to tell the complainant and he gave them Ksh. 20/= to buy sweets. 6. After the siblings left the appellant took the complainant to a thicket where there were pears. He started touching the minor everywhere and had her raised between his legs. He told her she was his wife and would strangle her, if she refused. He spread her buttocks and inserted his thing inside her, this was inside the anus. The penis did not enter the vagina but kept sliding into the anus. The siblings came back and when they heard them the accused released her. She left him kneeling and left, then screamed. People came and found him hiding in the bamboo and started beating him. She did not know the appellant but heard people call him Mokaya. She was taken to hospital that night but the incident happened during the day. 7. On cross examination she stated that the appellant was Kisii by ethnicity but pretending to be Luhya. The appellant gave the siblings Ksh. 20/= and gave the complainant Ksh 20/=. The complainant stated that she was there when the people beat the appellant. 8. PW2 was a minor aged 8 years. Voire dire was carried out. The court directed that she testifies on oath. She stated that she was going to shop on 14.04.2021 with PW1, a younger brother also, a minor. They went to buy some flour but did not find a shopkeeper. They went to look for him at home but did not find him. The accused gave them some pears and told them he wanted to speak to PW1. The appellant gave then 20/= to buy sweats. When they went back, they did not find PW1. They did not find them and went to report. After some time, the complainant came out screaming. People came and found the appellant who was beaten when found inside trees. The complainant gave out the father’s number who was called and went to where they were. She identified the appellant in the dock. On cross examination she stated that the appellant gave them 20/=. They had 120/= to buy flour. 9. PW3 was LNF, the complainant’s mother. She learnt at 1500hrs that a man had been arrested for defiling their daughter. She took the tea she had harvested and went to Gacharage Police Station where the matter was reported. She found the appellant having been beaten and was with the complainant and the complainant’s father. They were referred to Kigumo police station. She spoke to the minor, who was 12 years old having been born on 26.10.2010. She identified the medical reports. She stated on cross examination that she sent children to beg. She stated that the appellant defiled the daughter, not attempted defilement. 10. PW4 was Joseph Mwangi Mungai. He stated that he had harvested tea and was waiting for the vehicle to come. He heard screams. He found a lady who told him that a man had taken a child into the thicket. They found a child crying and another child was carried by another. The two children told them that the appellant gave them 20/= to buy sweets. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6381/eng@2026-05-07 2

page 2 of 12

11. The appellant had taken their sister to the bushes. They went with boys into the bush where they found the appellant and beat him. The complainant was there and crying. They called the village elder who advised to take the appellant to the police station. He had not known the appellant before the incident but identified him in the dock. On cross examination he stated that he was there when the appellant was brought from the bush. 12. PW5 was RWL, the complainant’s father. He received a call where he was informed that his daughter had been defiled. He came and found the minor was defiled from behind. The crowds had beaten the appellant. He told them to stop and take him to the police station. They went to Gacharage Police Station, and then went to Ngonda Police Station, then to Kigumo Police Station where they found officers. The minor was aged 11 years. He stated that he was duty bound to report and take the appellant to the police station. He needs to know the truth on the defilement. 13. PW6 (Indicated as PW5) was Naomi Njeri Mungai, a Clinical Officer from Kigumo Hospital with 13 years’ experience. She received a history of defilement of an 11-year-old on 14.4.2022. The man knelt down on his knees, held the minor’s mouth and inserted the penis into the vagina. The minor was generally okay except she looked scared. She examined and found that the anus was okay, normal. They found the vagina was broken but not freshly broken. There were epithelial cells in high vaginal swab but there were no spermatozoa. The appellant entered the vagina from behind. 14. On cross examination, she stated that on examination, she found that there was defilement. It was up to the police to look at the claims. The minor was defiled in a dirty place. 15. PW7 was PC Fredrick Orumoi who took over investigation from the previous investigating officer. They investigated a case of defilement. The members of the public took the appellant to the police station where it was recorded on the OB. The previous investigating officer took the appellant to hospital. He had been assaulted by members of the public. The witness statements were recorded. The complainant explained her story on how the incident happened and the appellant defiled her from behind. The siblings had been given 20/= to go and buy sweets. Later when the complainant screamed members of the public came to her rescue. He produced a birth certificate. 16. On cross examination, he stated that members of the public took him to the police station. The appellant was taken to hospital and treated. Photos of the scene were not taken. The minor identified the appellant as the one who defiled her. He stated that there was sufficient evidence to charge. 17. The appellant was placed on his defence. He gave sworn testimony. He stated that the case does not concern him. He was picked from his work place by members of the public and forcefully taken to Kigumo Police Station. He denied involvement in the case. On cross examination, he stated that he does not know why they said that he committed the crime and why he was implicated. He was not attacked but arrested and taken to the police station. He stated that he first saw the complainant in court. Even the complainant’s parents were known in court. He stated that the child was told at the police station on what to say and repeated that in court. He did not know who arrested him and did not agree that the complainant’s father saved him from the mob. 18. Judgment was delivered on 27.08.2023. Submissions 19. The appellant filed undated submissions on 2.1.2026. He posited that there were inconsistencies, in that the minor indicated that entry was in the anus while medical officer indicated was in the vagina. He submitted that the court failed to comply with section 211 of the Criminal Procedure Code. It was his case that case law made compliance mandatory. He submitted that the burden of proof was not made. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6381/eng@2026-05-07 3

page 3 of 12

20. He submitted that evidence of identification was not conclusive. He stated that identification was weak. He submitted that crucial witnesses were not called. Reliance was placed on section 143 of the Evidence Act. He relied on the case of Bukenya & Others v. Uganda [1972] EA 549). Further reliance was placed on the case of Nguku -Vs- Republic (1985) KLR 412, where the Court of Appeal observed that; “ …. Where a party fails to produce certain evidence, a presumption arises that the evidence produced would be unfavorable to that party’’ 21. He submitted that the prosecution case was marred by contradiction. He relied on the case of Joseph Ndungu Kimanyi v Republic [1979] eKLRandJoseph Maina Mwangi v Republic [2000] eKLR. Lastly he submitted that the evidence of the investigating officer was produced by another officer. 22. The state filed submissions dated 20.11.2025. The respondent invited the court to rely on the case of Okeno v Republic [1972] EA 32 at 36 for guidance on the court's duty in a first appeal. 23. They submitted that it flows from the above that the minor was under instructions to tell the truth lest a punishment would ensue. The issue in these submissions will then be, whose truth (narrative) was she prepared to tell? It would appear that from voire dire, the trial court reached a conclusion that the minor may not have understood the value of the oath. They submitted that section 211 of the Criminal Procedure Code was complied with as indicated in the ruling in page 56 of the ruling. It is evident that the court relied on the said section. Reliance was placed on the case of Benson Kamau Mwangi v Republic [2010] eKLR. 24. They submitted that in pages 71 and 72 of the record, the record shows that the court found the evidence of the appellant corroborative. On identification, they submitted that the minor raised an alarm leading to the appellant being arrested from inside the forest where he was hiding. 25. On not calling all evidence, it was submitted that the totality of the evidence of the offence was proved. On contradictions, they stated that any contradiction did not go to the root of the key issues. They urged the court to dismiss the appeal. Analysis 26. 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6381/eng@2026-05-07 4

page 4 of 12

27. 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. 28. 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. 29. 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. 30. 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, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6381/eng@2026-05-07 5

page 5 of 12

but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. 31. 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. 32. 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. 33. 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 of 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. The Law 34. The law under which the appellant was charged is provided under Section 8(1) and (2) of the Sexual Offences Act as hereunder: 8. 35. (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. 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; a. Proof of the age of the complainant, b. Proof of penetration and c. Proof that the appellant was the perpetrator of the offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6381/eng@2026-05-07 6

page 6 of 12

d. 36. 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 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. 37. While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic, Malindi 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. 38. 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 7 or 8, 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. 39. 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. 40. 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6381/eng@2026-05-07 7

page 7 of 12

41. The medical documents and the birth certificate showed that the minor was 11 years and 5 months having been born on 26.10.2010. This was proved and is not an issue in this appeal. This leaves two other issues – identification and penetration. On identification, the minor and the two children were at the scene. The minor was defiled and then screamed. Members of the public arrested him in the locus in quo. The evidence of identification was clear. The minors, PW1 and PW2, took time while dealing with peers. The appellant was literally caught in flagrante delicto. There was no time lapse between the screaming and the arrest. Literally the ink had not dried by the time the appellant was arrested by the members of the public who took him to the police station. There was no possibility of error. In the case of Reuben Taabu Anjononi, Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR), the court of appeal [ Madan, Law & Potter JJ A)] posited as follows: The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported). 42. The appellant was properly identified without any error. The appellant was caught at the scene of crime. 43. This leaves the question of penetration. The medical evidence showed that there was an old, broken hymen. However there was epithelial cells. This showed vaginal penetration. The appellant took issue that the minor was defiled in another day. That is not relevant evidence pursuant to section 34(1) of the Sexual Offences Act which provides as follows: (1) No evidence as to any previous sexual experience or conduct of any person against or in connection with whom any offence of a sexual nature is alleged to have been committed, other than evidence relating to sexual experience or conduct in respect of the offence which is being tried, shall be adduced, and no question regarding such sexual conduct shall be put to such person, the accused or any other witness at the proceedings pending before a court unless the court has, on application by any party to the proceedings, granted leave to adduce such evidence or to put such questions. 44. The previous or future sexual activities are in the province of this court. That is why, even where someone is pregnant, obviously due to previous sexual encounter, that is not used as evidence that there was no defilement or rape. Defilement is a cross sectional time specific event by a specific person. 45. The medical evidence clearly showed that there was rear vaginal entry. The appellant to expect a minor aged 11 years to know the difference between anal entry and rear entry is to ask too much. However, it is clear from her evidence that the penis kept slipping in and out. That could only be vaginal entry. 46. It makes no difference where the penetration occurred. The defilement occurred. The court was satisfied on the truthfulness of the minor’s evidence. Even the evidence was not impeached on cross examination. The minor’s evidence was sufficient to convict in the circumstances. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6381/eng@2026-05-07 8

page 8 of 12

47. The court noted the demeanor of the witnesses and found them to be credible. The court had relied on section 124 of the Evidence Act. The said section provides as follows: 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. 48. The court found that there was no indication whatsoever that the minors had an intention to frame the accused. The reasons were given by the court that heard the witnesses. The court analyzed evidence and stated that there was no evidence of foul play. The appellant was the one who vaginally penetrated the minor from behind. Medical evidence was believable. The court has a duty to consider medical evidence along other evidence. 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.” 49. 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.” 50. 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, it was held 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6381/eng@2026-05-07 9

page 9 of 12

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." 51. The evidence all points to one and only one conclusion, proof of the case beyond reasonable doubt. The court had the advantage of seeing the demeanor of the children and found them consistent and truthful. 52. The next question is the allegations of contradictions. I do not find any contradiction. In regard to the anus, it is clear that the minor was penetrated from behind. This was born out of the medical evidence. It could not matter if it was the vagina which was penetrated or the anus. Section 2 provides as follows in regard to penetration. “ Penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person; 53. On the other hand, a genital organs is defined in the same section as: “ Genital organs" includes the whole or part of male or female genital organs and for purposes of this Act, includes the anus; 54. Were there any contradictions; there were no significant contradictions whatsoever. In the case of Philip Nzaka Watu vs. Republic [2016] eKLR, the Court of Appeal held as follows on contradiction: “ The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question. 55. The question of the magnitude of contractions, unless satisfactorily explained, will usually but not necessarily lead to the evidence of a witness being rejected. As was noted in Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6: With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6381/eng@2026-05-07 10

page 10 of 12

56. 57. The appeal on conviction is therefore dismissed. The court then has to deal with the issue of sentence. The nature of sentences under the Sexual Offenses Act is circumscribed. This particular offence under section 8(1) and (2) of the Sexual Offences Act provides for a mandatory sentence of life imprisonment. The question of such sentences was addressed in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [supra] where the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] posited as follows: 11. Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime 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 was 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6381/eng@2026-05-07 11

page 11 of 12

58. 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. Basically, on the question of sentence, the court below had no discretion. The court gave thirty years. The sentence is illegal. The sentence is set aside and replaced with life imprisonment. Determination 59. In the circumstances, I make the following orders: a. The appeal on conviction and sentence is dismissed. However, the sentence of thirty years is set aside and substituted with the legal sentence of life imprisonment. b. Right of appeal 14 days. c. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 7TH DAY OF MAY, 2026. Judgment delivered through Microsoft Teams Online Platform. KIZITO MAGARE JUDGE In the presence of: Appellant present Ms. Wambani for ODPP PC John Maina present Court Assistant – Michael/Martin M. D. KIZITO, J. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6381/eng@2026-05-07 12

page 12 of 12