REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
HCCRA E032 OF 2023
BENARD GEOFREY KORIR …………….……………..……………….. APPELLENT
VERSUS
REPUBLIC ……………………………………....……………......................RESPONDENT
JUDGEMENT
1. The appellant BENARD GEOFREY KORIR was convicted after trial of rape contrary to Section 3(1) (a) (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 18.5.2021 at FORT TERNAN area in Kipkelion West Sub county within Kericho County the accused intentionally and unlawfully caused his penis to penetrate the vagina of SHARON CHEPKORIR by use of force, intimidation and threat. On 9.8.2021 the appellant was sentenced to ten years imprisonment. This was after the trial court considered his mitigation and pre-sentence report.
2. Being dissatisfied with the conviction and sentence the appellant filed the undated petition on 15.8.2023. He challenged the conviction and sentence on the following grounds :
(i) That the trial magistrate erred in sentencing me (sic) 10 years mandatory in rate.
(ii) That it was a matter of consent therefore the 10 years sentence does not suffice.
(iii) That the trial Magistrate erred by setting on prosecution evidence which was inconsistent in nature.
(iv) That the prosecution did not prove its case against the appellant beyond reasonable doubt.
(v) That the prosecution evidence was moved with contradiction and glazing gaps.
(vi) That the learned trial Magistrate failed to realize that the main ingredients of rape were reviewed established by the prosecution.
(vii) That the learned Trial Magistrate failed to work himself against the days of sentencing the appellant on un contributed evidence of the complainant.
(viii) That the appellant failed to benefit from failure by the prosecution to bring any exhibit to court to prove this care.
(ix) That the trial Magistrate was biased and prefidicial (sic) against the appellant hence the appellant was not accorded fair trial as enclosed in article 50 of the constitution.
(x) That the learned trial magistrate erred in law and facts by not believing the appellant’s defence which was truthful and trustworthy.
3. The appellant filed his submission dated 24.6.2025. Despite being given opposition to respond the state did not file any submissions. In the written submission by the appellant he starts by indicating that he has abandoned his challenge on conviction. He generally submitted on the severity of the sentence and its mandatory nature. He also asked that the court consider the time he was kept in remand.
4. This being the first appellate court my duty is to re-evaluate and re-exam the evidence produced before the trial court and subject it to a fresh analysis to enable me to arrive at an independent conclusion, This duty was set out in the widely cited case of Okeno –vs- Republic (1972) EA 32.
5. As noted above the appellant is not appealing against the conviction. His only issue is the sentence meted out. Under Section 3(3) of the Sexual Offence Act it is provided :
“(3) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.”
6. The Penal provision sets a minimum sentence of 10 years. The trial court had no discretion in the matter. In this case I am not called upon to disturb or overturn exercise of discretion in sentencing. The learned Magistrate after considering the plea in mitigation and pre-sentence report was of the considered opinion that the minimum sentence provided was suitable. It could of course have been higher. The law provides for upto life sentence.
7. The state has not sought enhancement of the sentence. I therefore have no basis to enhance the same. As held by the Supreme Court in Republic –vs- Manyeso (2025) KESC 16 (KLR):
“This court has no jurisdiction to amend the Sexual Offences Act. Where a minimum sentence is prescribed the court has no discretion. It is a mandatory sentence.”
8. As a matter of fact the appellant benefited from the least severe sentence available. I have seem his complaint that he was entitled, under Section 333(2) of the Criminal Procedure code, to reduction of the sentence by 3 months spent in remand custody. This is not disputed. It is borne out by the record. It is allowed.
9. In the result the appeal by the appellant and sentence is without merit. It is hereby dismissed save for the reduction of the prison term by three months, It is so ordered.
Dated Signed and delivered virtually by this 4th day of June 2026
ALEX ITHUKU
JUDGE
Read virtually in the presence of:
………………………. ………………Prosecutor
……………………………………….Accused
……………………………………….Court Assistant
ALEX ITHUKU
JUDGE
IN THE HIGH COURT OF KENYA AT KISUMU
HCCRA E032 OF 2023
BENARD GEOFREY KORIR …………….……………..……………….. APPELLENT
VERSUS
REPUBLIC ……………………………………....……………......................RESPONDENT
JUDGEMENT
1. The appellant BENARD GEOFREY KORIR was convicted after trial of rape contrary to Section 3(1) (a) (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 18.5.2021 at FORT TERNAN area in Kipkelion West Sub county within Kericho County the accused intentionally and unlawfully caused his penis to penetrate the vagina of SHARON CHEPKORIR by use of force, intimidation and threat. On 9.8.2021 the appellant was sentenced to ten years imprisonment. This was after the trial court considered his mitigation and pre-sentence report.
2. Being dissatisfied with the conviction and sentence the appellant filed the undated petition on 15.8.2023. He challenged the conviction and sentence on the following grounds :
(i) That the trial magistrate erred in sentencing me (sic) 10 years mandatory in rate.
(ii) That it was a matter of consent therefore the 10 years sentence does not suffice.
(iii) That the trial Magistrate erred by setting on prosecution evidence which was inconsistent in nature.
(iv) That the prosecution did not prove its case against the appellant beyond reasonable doubt.
(v) That the prosecution evidence was moved with contradiction and glazing gaps.
(vi) That the learned trial Magistrate failed to realize that the main ingredients of rape were reviewed established by the prosecution.
(vii) That the learned Trial Magistrate failed to work himself against the days of sentencing the appellant on un contributed evidence of the complainant.
(viii) That the appellant failed to benefit from failure by the prosecution to bring any exhibit to court to prove this care.
(ix) That the trial Magistrate was biased and prefidicial (sic) against the appellant hence the appellant was not accorded fair trial as enclosed in article 50 of the constitution.
(x) That the learned trial magistrate erred in law and facts by not believing the appellant’s defence which was truthful and trustworthy.
3. The appellant filed his submission dated 24.6.2025. Despite being given opposition to respond the state did not file any submissions. In the written submission by the appellant he starts by indicating that he has abandoned his challenge on conviction. He generally submitted on the severity of the sentence and its mandatory nature. He also asked that the court consider the time he was kept in remand.
4. This being the first appellate court my duty is to re-evaluate and re-exam the evidence produced before the trial court and subject it to a fresh analysis to enable me to arrive at an independent conclusion, This duty was set out in the widely cited case of Okeno –vs- Republic (1972) EA 32.
5. As noted above the appellant is not appealing against the conviction. His only issue is the sentence meted out. Under Section 3(3) of the Sexual Offence Act it is provided :
“(3) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.”
6. The Penal provision sets a minimum sentence of 10 years. The trial court had no discretion in the matter. In this case I am not called upon to disturb or overturn exercise of discretion in sentencing. The learned Magistrate after considering the plea in mitigation and pre-sentence report was of the considered opinion that the minimum sentence provided was suitable. It could of course have been higher. The law provides for upto life sentence.
7. The state has not sought enhancement of the sentence. I therefore have no basis to enhance the same. As held by the Supreme Court in Republic –vs- Manyeso (2025) KESC 16 (KLR):
“This court has no jurisdiction to amend the Sexual Offences Act. Where a minimum sentence is prescribed the court has no discretion. It is a mandatory sentence.”
8. As a matter of fact the appellant benefited from the least severe sentence available. I have seem his complaint that he was entitled, under Section 333(2) of the Criminal Procedure code, to reduction of the sentence by 3 months spent in remand custody. This is not disputed. It is borne out by the record. It is allowed.
9. In the result the appeal by the appellant and sentence is without merit. It is hereby dismissed save for the reduction of the prison term by three months, It is so ordered.
Dated Signed and delivered virtually by this 4th day of June 2026
ALEX ITHUKU
JUDGE
Read virtually in the presence of:
………………………. ………………Prosecutor
……………………………………….Accused
……………………………………….Court Assistant
ALEX ITHUKU
JUDGE