REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
CRIMINAL APPEAL NO. E083 OF 2024
ANDREW MWERI TEFWA…………………………………..……………….. APPELLANT
VERSUS
REPUBLIC ……………………………………………………………………. RESPONDENT
(Being an appeal against the conviction and sentence by Hon. ONALO J K OLGA (SRM) in Malindi SRM (SO) Case No. E069 of 2021)
JUDGEMENT
1. The appellant herein, Andrew Mweri Tefwa, was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act, No. 3 of 2006.
2. The particulars of the offence are that on the 28 th day of August 2021 at Jimba Gede Village in Malindi Sub-County within Kilifi County, he intentionally and unlawfully caused his penis to penetrate the vagina of T.I.J, a girl aged 16years old. The Appellant also faced an alternative offence of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act, No.3 of 2006, in that on the 28 th day of August 2021 at Jimba Gede Village in Malindi Sub-County within Kilifi County, he intentionally touched the vagina of T.I.J, a child aged 16 years old with his penis.
3. He denied the allegations prompting the trial where the prosecution called four (4) witnesses to prove its case. PW1 testified that she was 16 years at the time of commission of the offence. On 28 August 2021 at around 7pm, she was at home alone in the house located in Kipepeo at Gede. The Appellant, who was well known to her and lives in the same homestead called her, led her to the bushes, had sex with her after which they both returned home, she cooked and they both ate. She further testified that they had a relationship with the Appellant and had had sex severally with the appellant when her parents were away. That while in school a few days later, she was hit on the chest by another student and was taken to Malindi Sub-County Hospital by PW3 her mother where upon examination was found to be 5 months. She identified the Appellant as responsible. She further said that the reason she did not report is because he threatened her with violence if she reported.
4. PW 2, Dr Moses Rimba a Medical Officer from Malindi Sub -County examined the complainant on 13 September 2021 where he concluded that she was 21 weeks 1 day pregnant and her hymen was broken. He produced Medical Examination Report, X-rays and Lab Test results to support his findings.
5. PW4 investigated the case and upon obtaining sufficient evidence, arrested the appellant who was arraigned on 20 September 2021. At the close of the prosecution’s case, the court found that a prima facie case had been established and placed the appellant in his defence.
6. In defence, the Appellant admitted that he knew the complainant since they are related but denied defiling her stating that the complainant was forced to name him as the perpetrator owing to the land dispute the two families had. He further testified that in 2021, he lived at Gede but worked in Watamu. He called two witnesses who testified in that regard.
7. At the close of the trial, the Appellant was found guilty of defilement and sentenced to 15 years imprisonment. Aggrieved, the Appellant filed the present Appeal where he raised the following grounds of appeal:
a) The trial court erred in both law and fact by failing to appreciate that the case was not proven beyond reasonable doubt.
b) The trial court erred in both law and fact by failing to consider sharp contradictions on the prosecution's case in contravention of Section 163 (1) of the Evidence Act.
c) The trial court erred in both law and fact by failing to take into account that the documentary exhibits produced by the prosecution were unreliable.
d) The trial court erred in both law and fact by failing to appreciate the negligence and ignorance of the police service unit.
8. Both Parties filed written submissions which they relied on at the hearing of the appeal. On the issue of penetration, the Appellant contended that the trial court placed undue reliance on the uncorroborated testimony of the complainant. While appreciating the impot of Section 124 of the Evidence Act , the Appellant argued that the trial court ought to have recorded that finding and given reasons for holding that belief. Reliance was placed in the case of Mohamed vs Republic (2006) eKLR on this point.
9. The appellant further submitted that there was no direct medical or scientific evidence that linking him to the offence. It was contended that the prosecution failed to conduct DNA analysis that would either link or de-link the Appellant to the offence by confirming or disproving penetration. On this point, the Appellant contended that failure by the prosecution to call material evidence would attract an adverse inference against it and relied on the case of Mwangi vs Republic (1984) KLR 595 to support the argument. Lastly, the Appellant argued that the trial court failed to consider and properly weigh the apparent contradictory accounts of the alleged events by the prosecution witnesses.
10. The Respondent opposed the appeal, undertook to file written submissions by 19 May 2026 but failed to do so. I have considered appellant’s appeal and submissions alongside the evidence on record, record of proceedings and judgement of the trial court.
Analysis and determination
11. This being the first appeal, the duty of this court is to examine and re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See Okeno vs Republic [1972] EA 32.
12. The Court of Appeal, in Kiilu & Another v Republic [2005]1 KLR 174 , stated thus;
“ 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.
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.”
13. With that in mind, the court will re-evaluate and re-examine the evidence adduced during trial and arrive at its own conclusion as to whether that evidence, considered as a whole, supports the finding of the trial court.
14. The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act . The said Act provides:
“ 8 (1) A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement.
(2)……………….
(3)……………….
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years .”
15. The specific elements of the offence of defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are: proof of penetration; age of the complainant and positive identification of the assailant. See Charles Wamukoya Karani v Republic , Criminal Appeal No. 72 of 2013 .
16. Drawing from the above, the issues for determination in this appeal are as follows: -
a) Whether penetration was proved.
b) Whether the Appellant was positively identified.
c) Whether the age of the complainant was proved.
17. In determining this appeal, the court shall consider the grounds of appeal raised by the Appellant, the arguments made by way of written submissions in support thereof, the written submissions by the Respondent, the evidence on record and the relevant law.
Penetration
18. Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person . “genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus.
19. Penetration can be proved through the complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. See Bassita Vs Uganda S.C Cr App. No.35 of 1995 .
20. This being a sexual offence, the case can be proved on the victim’s sole testimony by dint of Section 124 of the Evidence Act without any other corroboration, if and when the conditions set out in the proviso thereunder are met. The court of appeal in Kassim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa) held: -
“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence”. See also Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR).
21. PW1 testified that she had sex with the appellant on several occasions. She described one of those instances where on 28 August 2021 at around 7pm the appellant had sex with her in the bushes. Her testimony was corroborated medical evidence adduced by PW2 who upon examination, established that she was 21 weeks 1 day pregnant and her hymen was broken. The appellant who resided in the same house as the victim was placed in the crime scene. The court did not find credence in the appellant’s defence that he had been victimized due to the ongoing dispute between the families since no evidence was tendered to prove that a dispute existed as alleged or at all.
22. The appellant challenged the failure by the prosecution to conduct DNA arguing that without DNA, the element of penetration had not been proved. The question before the court’s mind is whether the failure to conduct a DNA test is fatal to the prosecution’s case.
23. Section 36 (1) of the Sexual Offences Act is not couched in mandatory terms but grants discretion to the court to order for forensic or other scientific testing, including DNA for purposes of obtaining additional evidence to link a party to the offence. The court of appeal in the case of Williamson Sowa Mbwanga vs Republic (2016) eKLR held:
“As regards the first ground of appeal, it is patently clear to us that whilst paternity of PM’s child may prove that the father of the child had defiled PM, that is not the only evidence by which defilement of PM can be proved. The fact, as happens in many cases, that a pregnancy does not result from conduct that would otherwise constitute a sexual offence does not mean that the sexual offence has not been committed. In this case, there does not have to be a pregnancy to prove defilement. A DNA test of the appellant would at most determine whether he was the father of PM’s child, which is a different question from whether the appellant had defiled PM. As the Court of Appeal of Uganda rightly stated, in the sexual offence of defilement, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence and that it is not necessary that the hymen be ruptured. (See TWEHANGANE ALFRED v. UGANDA, CR. APP. NO. 139 OF 2001) ”.
24. Drawing from the above, the court takes the view that while DNA would have provided additional evidence, there is no legal requirement that DNA must be conducted to sustain a conviction in a sexual offence. Under Section 124 of the Evidence Act, in sexual offences such as this, a person can be convicted on the victim’s sole testimony. Consequently, the failure to conduct DNA is not fatal to the prosecution’s case. The court is satisfied that there was penetration and finds so.
Proof of age of the victim
25. It is of utmost importance to prove the age of the victim in a case of defilement. In Hadson Ali Mwachongo vs Republic (2016) eKLR , the Court of Appeal held that:
“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.”
26. The age of a victim may be proved in various ways. The court of appeal in Edwin Nyambogo Onsongo Vs. Republic (2016) eKLR stated:
“ ... 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.”
27. The complainant testified that she was 16 years old at the time the offence occurred. This was corroborated by PW4 who produced the complainant’s birth certificate which shows that she was born on 6 February 2004 meaning that she was 16 years at the time the offence occurred. The appellant did not challenge the authenticity of the birth certificate and the court finds no reason to doubt it. The court finds that age of the complainant was proved beyond any reasonable doubt.
Identification of the appellant as the perpetrator
28. On the issue of identification, the evidence shows that the complainant and the appellant are well known to each other, are related and lived in the same house in Gede. The complainant positively identified the appellant as responsible for her pregnancy and averred that they had had sex on very many occasions in the bushes, the last incident occurring on 28 August 2021. Having analyzed the circumstances and facts of the case, the court finds that the appellant was positively identified by recognition.
29. This court is therefore satisfied that the trial court properly found that the prosecution had proved all ingredients of the offence beyond a reasonable doubt and was right to find that the appellant’s defence did not dislodge the overwhelming evidence by the prosecution. The court finds the conviction by the trial court is safe and is therefore upheld.
Sentencing
30. Regarding the sentence, Section 8 (4) of the Sexual Offences Act provide that a person who commits an offence of defilement with a child between the age of 16 and 18 years is liable upon conviction to imprisonment for a term of not less than 15 years, this being the mandatory minimum sentence.
31. While sentencing the appellant to 15 years, the trial court held, “it is certain from the foregoing that there is no room to exercise discretion in light of the sentences prescribed in the Sexual Offices Act, whether in consideration of mitigation or any other factors thereto, hence no need to labour over the same.”
32. The trial court misdirected itself on the impot of the law, particularly Section 8 (4) of the Sexual Offices Act and its role in sentencing. The said law does not take away a court’s discretion in awarding sentences but limits the court’s discretion on the minimum sentence that it can award. It is thus expected that a trial court will consider and weigh the mitigation of an accused against any aggravating factors before it renders a sentence, always noting not to go below the mandatory minimum sentence set. This means that in appropriate cases, a court can award a higher sentence that the minimum set.
33. Section 354 (3) of the Criminal Procedure Code empowers the High Court to maintain or vary any sentence on appeal. The court has considered the appellant’s mitigation and weighed it against the nature of the offence and other factors. It notes that there are no aggravating circumstances that would warrant enhancement of the sentence. The court finds that the sentence of 15 years imprisonment imposed by the trial court is lawful and appropriate, and finds no reason to interfere with it.
34. The upshot is that the appeal against conviction and sentence lacks merit and is hereby dismissed in its entirety.
Dated, signed and delivered virtually at Nairobi on this 18 th day of June 2026
JOSEPH KIPKOECH BIOMDO
JUDGE
Criminal Appeal No. E083 of 2024
IN THE HIGH COURT OF KENYA AT MALINDI
CRIMINAL APPEAL NO. E083 OF 2024
ANDREW MWERI TEFWA…………………………………..……………….. APPELLANT
VERSUS
REPUBLIC ……………………………………………………………………. RESPONDENT
(Being an appeal against the conviction and sentence by Hon. ONALO J K OLGA (SRM) in Malindi SRM (SO) Case No. E069 of 2021)
JUDGEMENT
1. The appellant herein, Andrew Mweri Tefwa, was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act, No. 3 of 2006.
2. The particulars of the offence are that on the 28 th day of August 2021 at Jimba Gede Village in Malindi Sub-County within Kilifi County, he intentionally and unlawfully caused his penis to penetrate the vagina of T.I.J, a girl aged 16years old. The Appellant also faced an alternative offence of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act, No.3 of 2006, in that on the 28 th day of August 2021 at Jimba Gede Village in Malindi Sub-County within Kilifi County, he intentionally touched the vagina of T.I.J, a child aged 16 years old with his penis.
3. He denied the allegations prompting the trial where the prosecution called four (4) witnesses to prove its case. PW1 testified that she was 16 years at the time of commission of the offence. On 28 August 2021 at around 7pm, she was at home alone in the house located in Kipepeo at Gede. The Appellant, who was well known to her and lives in the same homestead called her, led her to the bushes, had sex with her after which they both returned home, she cooked and they both ate. She further testified that they had a relationship with the Appellant and had had sex severally with the appellant when her parents were away. That while in school a few days later, she was hit on the chest by another student and was taken to Malindi Sub-County Hospital by PW3 her mother where upon examination was found to be 5 months. She identified the Appellant as responsible. She further said that the reason she did not report is because he threatened her with violence if she reported.
4. PW 2, Dr Moses Rimba a Medical Officer from Malindi Sub -County examined the complainant on 13 September 2021 where he concluded that she was 21 weeks 1 day pregnant and her hymen was broken. He produced Medical Examination Report, X-rays and Lab Test results to support his findings.
5. PW4 investigated the case and upon obtaining sufficient evidence, arrested the appellant who was arraigned on 20 September 2021. At the close of the prosecution’s case, the court found that a prima facie case had been established and placed the appellant in his defence.
6. In defence, the Appellant admitted that he knew the complainant since they are related but denied defiling her stating that the complainant was forced to name him as the perpetrator owing to the land dispute the two families had. He further testified that in 2021, he lived at Gede but worked in Watamu. He called two witnesses who testified in that regard.
7. At the close of the trial, the Appellant was found guilty of defilement and sentenced to 15 years imprisonment. Aggrieved, the Appellant filed the present Appeal where he raised the following grounds of appeal:
a) The trial court erred in both law and fact by failing to appreciate that the case was not proven beyond reasonable doubt.
b) The trial court erred in both law and fact by failing to consider sharp contradictions on the prosecution's case in contravention of Section 163 (1) of the Evidence Act.
c) The trial court erred in both law and fact by failing to take into account that the documentary exhibits produced by the prosecution were unreliable.
d) The trial court erred in both law and fact by failing to appreciate the negligence and ignorance of the police service unit.
8. Both Parties filed written submissions which they relied on at the hearing of the appeal. On the issue of penetration, the Appellant contended that the trial court placed undue reliance on the uncorroborated testimony of the complainant. While appreciating the impot of Section 124 of the Evidence Act , the Appellant argued that the trial court ought to have recorded that finding and given reasons for holding that belief. Reliance was placed in the case of Mohamed vs Republic (2006) eKLR on this point.
9. The appellant further submitted that there was no direct medical or scientific evidence that linking him to the offence. It was contended that the prosecution failed to conduct DNA analysis that would either link or de-link the Appellant to the offence by confirming or disproving penetration. On this point, the Appellant contended that failure by the prosecution to call material evidence would attract an adverse inference against it and relied on the case of Mwangi vs Republic (1984) KLR 595 to support the argument. Lastly, the Appellant argued that the trial court failed to consider and properly weigh the apparent contradictory accounts of the alleged events by the prosecution witnesses.
10. The Respondent opposed the appeal, undertook to file written submissions by 19 May 2026 but failed to do so. I have considered appellant’s appeal and submissions alongside the evidence on record, record of proceedings and judgement of the trial court.
Analysis and determination
11. This being the first appeal, the duty of this court is to examine and re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See Okeno vs Republic [1972] EA 32.
12. The Court of Appeal, in Kiilu & Another v Republic [2005]1 KLR 174 , stated thus;
“ 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.
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.”
13. With that in mind, the court will re-evaluate and re-examine the evidence adduced during trial and arrive at its own conclusion as to whether that evidence, considered as a whole, supports the finding of the trial court.
14. The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act . The said Act provides:
“ 8 (1) A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement.
(2)……………….
(3)……………….
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years .”
15. The specific elements of the offence of defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are: proof of penetration; age of the complainant and positive identification of the assailant. See Charles Wamukoya Karani v Republic , Criminal Appeal No. 72 of 2013 .
16. Drawing from the above, the issues for determination in this appeal are as follows: -
a) Whether penetration was proved.
b) Whether the Appellant was positively identified.
c) Whether the age of the complainant was proved.
17. In determining this appeal, the court shall consider the grounds of appeal raised by the Appellant, the arguments made by way of written submissions in support thereof, the written submissions by the Respondent, the evidence on record and the relevant law.
Penetration
18. Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person . “genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus.
19. Penetration can be proved through the complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. See Bassita Vs Uganda S.C Cr App. No.35 of 1995 .
20. This being a sexual offence, the case can be proved on the victim’s sole testimony by dint of Section 124 of the Evidence Act without any other corroboration, if and when the conditions set out in the proviso thereunder are met. The court of appeal in Kassim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa) held: -
“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence”. See also Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR).
21. PW1 testified that she had sex with the appellant on several occasions. She described one of those instances where on 28 August 2021 at around 7pm the appellant had sex with her in the bushes. Her testimony was corroborated medical evidence adduced by PW2 who upon examination, established that she was 21 weeks 1 day pregnant and her hymen was broken. The appellant who resided in the same house as the victim was placed in the crime scene. The court did not find credence in the appellant’s defence that he had been victimized due to the ongoing dispute between the families since no evidence was tendered to prove that a dispute existed as alleged or at all.
22. The appellant challenged the failure by the prosecution to conduct DNA arguing that without DNA, the element of penetration had not been proved. The question before the court’s mind is whether the failure to conduct a DNA test is fatal to the prosecution’s case.
23. Section 36 (1) of the Sexual Offences Act is not couched in mandatory terms but grants discretion to the court to order for forensic or other scientific testing, including DNA for purposes of obtaining additional evidence to link a party to the offence. The court of appeal in the case of Williamson Sowa Mbwanga vs Republic (2016) eKLR held:
“As regards the first ground of appeal, it is patently clear to us that whilst paternity of PM’s child may prove that the father of the child had defiled PM, that is not the only evidence by which defilement of PM can be proved. The fact, as happens in many cases, that a pregnancy does not result from conduct that would otherwise constitute a sexual offence does not mean that the sexual offence has not been committed. In this case, there does not have to be a pregnancy to prove defilement. A DNA test of the appellant would at most determine whether he was the father of PM’s child, which is a different question from whether the appellant had defiled PM. As the Court of Appeal of Uganda rightly stated, in the sexual offence of defilement, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence and that it is not necessary that the hymen be ruptured. (See TWEHANGANE ALFRED v. UGANDA, CR. APP. NO. 139 OF 2001) ”.
24. Drawing from the above, the court takes the view that while DNA would have provided additional evidence, there is no legal requirement that DNA must be conducted to sustain a conviction in a sexual offence. Under Section 124 of the Evidence Act, in sexual offences such as this, a person can be convicted on the victim’s sole testimony. Consequently, the failure to conduct DNA is not fatal to the prosecution’s case. The court is satisfied that there was penetration and finds so.
Proof of age of the victim
25. It is of utmost importance to prove the age of the victim in a case of defilement. In Hadson Ali Mwachongo vs Republic (2016) eKLR , the Court of Appeal held that:
“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.”
26. The age of a victim may be proved in various ways. The court of appeal in Edwin Nyambogo Onsongo Vs. Republic (2016) eKLR stated:
“ ... 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.”
27. The complainant testified that she was 16 years old at the time the offence occurred. This was corroborated by PW4 who produced the complainant’s birth certificate which shows that she was born on 6 February 2004 meaning that she was 16 years at the time the offence occurred. The appellant did not challenge the authenticity of the birth certificate and the court finds no reason to doubt it. The court finds that age of the complainant was proved beyond any reasonable doubt.
Identification of the appellant as the perpetrator
28. On the issue of identification, the evidence shows that the complainant and the appellant are well known to each other, are related and lived in the same house in Gede. The complainant positively identified the appellant as responsible for her pregnancy and averred that they had had sex on very many occasions in the bushes, the last incident occurring on 28 August 2021. Having analyzed the circumstances and facts of the case, the court finds that the appellant was positively identified by recognition.
29. This court is therefore satisfied that the trial court properly found that the prosecution had proved all ingredients of the offence beyond a reasonable doubt and was right to find that the appellant’s defence did not dislodge the overwhelming evidence by the prosecution. The court finds the conviction by the trial court is safe and is therefore upheld.
Sentencing
30. Regarding the sentence, Section 8 (4) of the Sexual Offences Act provide that a person who commits an offence of defilement with a child between the age of 16 and 18 years is liable upon conviction to imprisonment for a term of not less than 15 years, this being the mandatory minimum sentence.
31. While sentencing the appellant to 15 years, the trial court held, “it is certain from the foregoing that there is no room to exercise discretion in light of the sentences prescribed in the Sexual Offices Act, whether in consideration of mitigation or any other factors thereto, hence no need to labour over the same.”
32. The trial court misdirected itself on the impot of the law, particularly Section 8 (4) of the Sexual Offices Act and its role in sentencing. The said law does not take away a court’s discretion in awarding sentences but limits the court’s discretion on the minimum sentence that it can award. It is thus expected that a trial court will consider and weigh the mitigation of an accused against any aggravating factors before it renders a sentence, always noting not to go below the mandatory minimum sentence set. This means that in appropriate cases, a court can award a higher sentence that the minimum set.
33. Section 354 (3) of the Criminal Procedure Code empowers the High Court to maintain or vary any sentence on appeal. The court has considered the appellant’s mitigation and weighed it against the nature of the offence and other factors. It notes that there are no aggravating circumstances that would warrant enhancement of the sentence. The court finds that the sentence of 15 years imprisonment imposed by the trial court is lawful and appropriate, and finds no reason to interfere with it.
34. The upshot is that the appeal against conviction and sentence lacks merit and is hereby dismissed in its entirety.
Dated, signed and delivered virtually at Nairobi on this 18 th day of June 2026
JOSEPH KIPKOECH BIOMDO
JUDGE
Criminal Appeal No. E083 of 2024