David Kibet v Republic

4. The appellant pleaded not guilty and the matter proceeded to full trial. The prosecution called six witnesses and the appellant, in his defence, gave sworn evidence and called two witnesses. In a judgment delivered on 6th December 2023, the trial court found the appellant guilty on all three counts and convicted him accordingly. 5. Upon conviction the trial court sentenced the appellant to serve forty (40) years' imprisonment on Count I, ten (10) years' imprisonment on Count II, and ten (10) years' imprisonment on Count III, and ordered the said sentences to run consecutively, yielding an aggregate term of sixty (60) years' imprisonment. 6. Being aggrieved by both the conviction and the sentence, the appellant preferred the present appeal. In his Petition of Appeal, he set out the following grounds, which I reproduce in substance: a. That the learned trial magistrate erred in law and fact in convicting the appellant on evidence which was inconsistent and unbelievable and incapable of securing a safe conviction. b. That the learned trial magistrate erred in law and fact by relying on medical evidence which was inconclusive, defective and did not meet the required threshold. c. That the learned trial magistrate erred in law and fact by failing to order the sentences to run concurrently, notwithstanding that the offences appeared to have arisen from one and the same transaction. d. That the learned trial magistrate imposed a harsh and excessive sentence of sixty (60) years which exceeds the appellant's life expectancy, contrary to the principle in Ali Abdalla Mwanza v Republic, Criminal Appeal No. 259 of 2012 (Court of Appeal at Mombasa). e. That the appellant prayed to be present at the hearing of the appeal so as to canvass further grounds. 7. The appellant prayed that the appeal be allowed, the conviction quashed, the sentence set aside, and that he be set at liberty forthwith. 8. The appeal was canvassed by way of written submissions. Appellant's Submissions 9. The appellant submitted, in essence, that the evidence tendered by the prosecution was riddled with inconsistencies and was inherently improbable, and that the trial court ought not to have founded a conviction upon it. He contended that the medical evidence relied upon was inconclusive and defective and fell short of the threshold required to prove penetration. On sentence, he submitted that the three counts arose from a single transaction and that the sentences ought to have been directed to run concurrently, and that in any event an aggregate term of sixty years is manifestly harsh and excessive and beyond his reasonable life expectancy. Respondent's Submissions 10. The respondent opposed the appeal. It was submitted on behalf of the State that the prosecution had proved each of the three counts beyond reasonable doubt through the direct and consistent testimony of the two child complainants, corroborated by the medical evidence, and that the convictions were https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13032/eng@2026-08-20 2

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safe. On sentence, the State urged that the terms imposed were lawful and commensurate with the gravity of offences committed against very young children. Analysis and Determination 11. This being a first appeal, I am alive to the duty imposed upon a first appellate court. In David Njuguna Wairimu v Republic [2010] eKLR the Court of Appeal stated: “ The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions." 12. The same duty was expressed in Okeno v Republic [1972] EA 32, where the Court of Appeal held: “ 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 Republic (1957) EA 336) and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v R (1957) EA 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 finding 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, see Peters v Sunday Post [1958] EA 424." 13. I have accordingly subjected the entire record to a fresh and exhaustive re-evaluation, while bearing in mind that, unlike the trial court, I neither saw nor heard the witnesses testify. 14. It is trite that the burden of proof in a criminal case rests throughout upon the prosecution and that the standard is proof beyond reasonable doubt. In Miller v Ministry of Pensions [1947] 2 All ER 372, Lord Denning explained the standard thus: “ 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." 15. To like effect is the decision of the Supreme Court of Nigeria in Bakare v State (1987) 1 NWLR (Pt. 52) 579: “ Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13032/eng@2026-08-20 3

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including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability." 16. Having considered the grounds of appeal, the submissions and the record, I take the view that the appeal turns on two broad questions. The first is whether the prosecution proved the three offences against the appellant beyond reasonable doubt, a question which subsumes the complaints touching upon the credibility of the evidence and the sufficiency of the medical evidence (grounds (a) and (b)). The second is whether the sentence, and in particular the order that the sentences run consecutively, was lawful and proper (grounds (c) and (d)). I shall address them in turn. Whether the ofiences were proved beyond reasonable doubt 17. Count I is a charge of defilement. For such a charge to be sustained the prosecution must establish three ingredients, namely the age of the complainant, penetration, and the identity of the perpetrator. Section 8(1) of the Act provides that a person who commits an act which causes penetration with a child is guilty of an offence termed defilement, and section 8(2) prescribes that a person who defiles a child aged eleven years or less shall, upon conviction, be sentenced to imprisonment for life. Counts II and III are charges of sexual assault contrary to section 5 of the Act, the gravamen of which is the unlawful penetration of the genital organs of another person with a part of the body other than the genital organ, or with an object. Age 18. The importance of proving the age of the victim in a sexual offence cannot be gainsaid. In Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, the Court of Appeal held: “ 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." 19. In the present case the ages of the two complainants were proved to the required standard. PW6, the investigating officer, produced the birth certificate and the child health records of the complainants, which established that MC was aged 6 years and FC was aged 5 years at the material time. That evidence was not controverted. I am satisfied that the ages of both complainants were conclusively proved. Penetration 20. Section 2 of the Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. For the purposes of the offence of sexual assault under section 5, penetration includes the insertion of a part of the body into the genital organs of another. 21. On Count I, the evidence of penetration came principally from PW4, the first complainant (MC). She testified that she had been sent to deliver gumboots to the second complainant at the appellant's home and that on arrival she found the appellant there; that he kissed her and inserted his finger into her vagina; and that he thereafter applied jelly to her private parts before inserting his penis into her private parts. She stated that this was not the first occasion on which the appellant had done so, and on cross-examination she confirmed that she felt pain. Her account was corroborated by the medical evidence of PW5, Dr. Irene Simiyu, who produced the P3 form and testified that on examination MC https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13032/eng@2026-08-20 4

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was found to have vaginal and anal tears consistent with vaginal and anal penetration. That medical finding supports both the penile penetration charged in Count I and the digital penetration of the vagina and anus charged in Count II. I am satisfied that penetration, in respect of Counts I and II, was proved beyond reasonable doubt. 22. On Count III, the evidence of penetration came from PW2, the second complainant (FC). She testified that she went to play at the home of her playmate, the appellant's daughter; that the appellant switched on the television and, after they had briefly watched a programme, switched it off and took her and MC to another room and that there he removed his trouser, smeared jelly, and inserted his finger into her private parts, and kissed her on the mouth. She stated that the appellant did the same thing to them on several occasions whenever his wife and daughter were away. Her account was consistent with, and corroborated by, the evidence of PW1, her mother, to whom she made her first report to the effect that the appellant had inserted his fingers into her vagina. 23. I have given anxious consideration to the appellant's complaint that the medical evidence was inconclusive and defective. It is correct that the detailed clinical findings spoken to by PW5 related to the examination of MC. It is, however, well settled that medical evidence is not an indispensable prerequisite to a conviction for a sexual offence, and that a court may convict upon the credible evidence of the complainant alone. The proviso to section 124 of the Evidence Act permits a court, in a prosecution involving a sexual offence in which the only evidence is that of the child victim, to convict upon that evidence alone if, for reasons to be recorded, the court is satisfied that the child is telling the truth. The trial court was so satisfied and gave cogent reasons for that satisfaction. In respect of FC, her evidence was direct, was consistent with the account of the first complainant, and was supported by her prompt first report to PW1. The absence of a detailed medical examination in her particular case does not, in these circumstances, render the conviction on Count III unsafe. Ground (b) accordingly fails. Identiffcation 24. The identity of the appellant as the perpetrator was never in serious contest. This is a case of recognition and not of identification of a stranger. In James Murigu Karumba v Republic [2016] eKLR the Court of Appeal, relying on Suleiman Juma alias Tom v Republic (2003) eKLR, observed that where the identifying witnesses knew the accused prior to the incident the case is one of recognition, which carries greater probative value than identification of a stranger. Here the appellant was the neighbor of the complainants and the father of the second complainant's playmate. The complainants knew him well and had interacted with him at his home. The appellant himself, in his defence, did not deny knowing the complainants; his defence was that he did not and could not have committed the offences. The Court in R v Turnbull [1977] QB 224 provides the guidelines on correctness of the identification of an Accused person, it laid down that: “ The judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should instruct them as to the reason for that warning and should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of witnesses could all be mistaken. Provided that the warning is in clear terms, no particular words need be used. Furthermore, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. If in any case, whether being dealt with summarily or on indictment, the prosecution have reason to believe that there is a material discrepancy between the description of the accused given to the police by the witness when first seen and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13032/eng@2026-08-20 5

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his actual appearance, they should supply the accused or his legal advisers with particulars of the description the police were first given.” In so far as the facts of this case is concerned, the Appellant was known to the star witnesses being PW1 and PW2 prior to the time he took the advantage of the victims who in the lineage of consanguinity and affinity is fit to be grandfather to provide safety, security, support and maintenance in both the context of common and customary law. This is not visual identification which can be described as bringing about a miscarriage of justice. Identification evidence’ is defined in the Jury Directions Act (“JDA”) as an assertion by a person, or a report of an assertion by a person, that: he or she recognizes, or does not recognize, a person or object that they saw, heard, perceived on the relevant occasion; orthe general appearance or characteristics of a person or object are similar to the general appearance or characteristics of the person or object that he or she saw, heard or perceived on the relevant occasion This is a case in which the circumstances of the citing of the Appellant is not in dispute and was known to the witnesses who were Victim of the offence. They gave very clear description of the events involving the Appellant switching on and off the TV before involving himself with the unlawful and intentional sexual conduct to accomplish his mission of his victims state to be of very tender years of around 6 years. Having accepted the evidence of the two victims the court a quo considered the Appellant’s alibi defence and having regard to the evidence in its totality rejected the defence. In terms of the law under Section 107, 108, 109, 111, & 112 of the Evidence Act the perpetrator is the Appellant in this series of criminal acts involving children of very tender years. I am satisfied that the identity of the appellant was established beyond reasonable doubt. Credibility of the evidence and the defence 25. Ground (a) impugns the safety of the conviction on the footing that the evidence was inconsistent and unbelievable. I have re-evaluated the testimony of the two complainants with care. Far from being inconsistent, their accounts were, as the trial court found, remarkably consistent, even when they were recalled for further cross-examination a full six months after they had given their evidence in chief. The trial court, which enjoyed the advantage of seeing and hearing the two children testify, was entitled to find their evidence truthful, and I find no basis to disturb that assessment. The descriptions given by the complainants, aged 5 and 6 years, were detailed and graphic in a manner that children of such tender years could not have invented, and no motive for fabrication on the part of the complainants or their families was demonstrated. 26. The defence advanced by the appellant was threefold. He contended, first, that he was elsewhere by reason of his employment as a security guard; secondly, that he suffers from a medical condition of urinary incontinence following surgery in 2015, requiring the use of a catheter and diapers; and thirdly, that he was incapable of the acts charged by reason of erectile dysfunction. The trial court examined each limb of the defence and rejected it, and upon my own consideration I respectfully arrive at the same conclusion. 27. As to the first and second limbs, the defence was internally contradictory. The appellant asserted that he walked for some thirty minutes to reach his home, whereas his own wife, DW3, placed the distance at about five minutes' walk. As to the catheter, DW2, a medical doctor who had not treated the appellant and did not have his medical file, suggested that the catheter was a permanent and irremovable feature, whereas the appellant and DW3 stated that it was removed at night. These contradictions, as the trial court correctly found, betrayed a defence designed to shield the appellant rather than to present the facts as they truly were. Moreover, the evidence of the complainants was that the appellant would https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13032/eng@2026-08-20 6

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offend when his wife and daughter were away, and there was ample scope, on the evidence, for such occasions to arise. 28. I have also had regard to the fact that MC was found to be HIV positive. The trial court was careful not to treat the appellant's own HIV status as proof that he had transmitted the infection to the complainant, and it did not found the conviction upon that circumstance. That was, in my view, the correct approach. The conviction rests upon the direct evidence of penetration and its corroboration, and not upon the question of how the complainant came to be infected. 29. Drawing the threads together, and upon my own re-evaluation of the whole of the evidence, I am satisfied that the prosecution proved each of the three counts against the appellant beyond reasonable doubt. The convictions are safe. Grounds (a) and (b) fail, and the appeal against conviction is without merit. Sentence 30. I turn to the appeal against sentence, which is founded on grounds (c) and (d). Sentencing is preeminently a matter within the discretion of the trial court, and an appellate court will not interfere merely because it might itself have imposed a different sentence. It will interfere only where the trial court acted upon a wrong principle, overlooked a material factor, took into account an irrelevant factor, or where the sentence is manifestly excessive or is illegal. For this proposition I placed reliance in the case of Bernard Gacheru v Republic [2002] eKLR the Court held that: “ It is now settled law, following several authorities by this Court and by the high Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate Court will not easily interfere with sentence unless, the sentence is manifestly excessive in the circumstances of the case, or that the trial Court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court on sentence unless, anyone of the matters already states is shown to exist.” This is also the position taken by the comparative Court in S v Bogaards 2013 (1) SACR 1 (CC) at [41] held that: “ (41) 31. 41] Ordinarily, sentencing is within the discretion of the trial court. An appellate court's power to interfere with sentences imposed by courts below is circumscribed. It can only do so where there has been an irregularity that results in a failure of justice; the court below misdirected itself to such an extent that its decision on sentence is vitiated; or the sentence is so disproportionate or shocking that no reasonable court could have imposed it. ..,” Judicial discretion in sentencing is a core judicial power bounded by a Statute or Legislation accompanied with guiding principles like in our case is the sentencing policy guidelines of the judiciary published in 2023. It is therefore trite that Appellate Courts would only alter the Trial Court sentence of the Lower Court acted on a wrong principle or overlooked on the material factor or the sentence imposed is a different one from that prescribed from Parliament. This the dilemma in which the Trial Court must have find itself when it imposed an illegal sentence of 40 years imprisonment against life imprisonment as provided for under Section 8(2) of the Sexual Offences Act. That kind of discretion has been declared irregular and illegal by the Supreme Court of Kenya in Republic v Julius Kitsao Manyeso (2025) KESC 16 KLR. In their dicta the learned Justices of the Apex Court identified errors https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13032/eng@2026-08-20 7

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as against the judgment of the Court of Appeal which reviewed the life sentence for the Appellant and had it substituted with custodial sentence of 40 years imprisonment. The final decision was to the effect that the judicial discretion in sentencing by the Court of Appeal was against the scheme of legislation by Parliament under Section 8(2) of the Sexual Offences Act which provided a mandatory sentence of life imprisonment. Therefore, the Apex Court confirming that sentencing is founded upon two premises that are in perennial conflict: individualized justice and consistency. The first holds that courts should impose sentences that are just and appropriate according to all of the circumstances of each particular case. The second holds that similarly situated offenders should receive similar sentencing outcomes. The result is an ambivalent jurisprudence that challenges sentencers as they attempt to meet the conflicting demands of each premise. 32. Having found myself in this space I hold the view that sentencing is a notoriously difficult component of the criminal law system of any country Kenya included. It requires a Judge or Magistrate to balance complex, abstract, and often competing consideration clustered as aggravating factors, mitigation factors, age of the offender, the gravity of the offence, the previous records on convictions if any associated with the offender, all aimed at to achieving illusive and equally abstract notion of justice. It is to this extent that Judges and Magistrates sitting on a trial courts have traditionally enjoyed considerable discretion to tailor an appropriate sentence but conditioned to the minimum mandatory sentences prescribed by Parliament. In the case at bar Parliament as prescribed the imposition of mandatory life sentence for the offence of defiling a minor aged 11 years and below. The victim in the first count of defilement committed by the Appellant was aged 6 years. The Learned Trial Magistrate therefore could not enjoy the discretion to vary her sentence which on one end is prescribed as mandatory. The philosophy I see behind the Sexual Offences Act is the importance of maintaining confidence by fashioning sentences which are consistence having uniformity in mind in so far as those who defiled the children of Kenya with impunity. Once Parliament has prescribed the mandatory penalty for the offence Judges and Magistrates in Kenya do not have carte blanche to impose any sanction they see fit. Incidentally in this appeal, that is what the Learned Trial Magistrate did and though endowed with discretion, he cannot be allowed to run away with it from the reality of the case of defilement which he heard and determined in favour of the State on both guilt and conviction placed a burden on him to apply his legal mind correctly so as to impose a legal penalty of life imprisonment. This sentence of 40 years imprisonment cannot be allowed to stand as the mandatory sentence for such an offence has been determined by Parliament as an elected body representing the people of Kenya and not by Judges who must of necessity distance themselves from the political and public debate that swirls around that sentencing policy. 33. The Sexual Offences Act is a unique legislation which focuses more on deterrence and retribution of offenders. Essentially the introduction of mandatory sentences can be said to be a simple way for the legislature to achieve consistency in sentencing. Looking at it from the perspective of a practitioner in the bench strictly speaking this involves setting a fixed penalty for the commission of a criminal offence under the Sexual Offences Act and effectively removing judicial discretion from the Judges and Magistrates at the sentencing stage entirely. 34. I consider first the legality of the individual terms. The offence of defilement of a child aged eleven years or less attracts, under section 8(2) of the Act, a sentence of imprisonment for life. The term of forty years imposed on Count I is therefore not in equal measure with life imprisonment. It is an illegal sentence imposed by the learned Trial Magistrate. On that basis it must be interfered with by this Court by reviewing it, setting it aside and having it substituted with life imprisonment. The shape of this case depended upon the context of the Learned Trial Magistrate in his findings and placing justice at the center of the judgment. The other sentences of 10 years shall be held in abeyance as the Appellant proceeds to serve the life imprisonment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13032/eng@2026-08-20 8

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35. The real grievances of whether this court should order the sentence to run consecutively or concurrently is now moot. There would be no realignment of the life sentence into categories of consecutive or concurrent synthesis. 36. In the result, and for the reasons I have given, I make the following orders: a. That the appeal against conviction is dismissed. b. That the custodial sentence of 40 years imposed by the Trial Court has been reviewed by applying the principles in Section 80 of the CPA, Order 45 Rule1 of the CPR as read with Section 362 and 364 of the CPC to bring the order into conformity with Section 8(2) of the Sexual Offences Act. c. That the other sanctions of 10 years for the two counts shall be held in abeyance for respectably they cannot be said to fit or the circumstances of the case and in particular the life sentence imposed by this court. d. That before a Judge or Magistrate can impose appropriate sentence, one must properly apprise of the purpose or purposes of the sanctions under the Sexual Offences Act. e. That the appellant be at liberty to apply to the Court of Appeal within 14 days. f. Orders accordingly. DATED, SIGNED AND DELIVERED AT ELDORET THIS 20TH DAY OF AUGUST 2026 ……………………………………… R. NYAKUNDI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13032/eng@2026-08-20 9

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