The Appellant Charles Okoth Adawa alias Mouris Otunga was charged with the offence of defilement contrary to section 8(1) as read with section (4) of the Sexual Offences Act No. 3 of 2006.
The particulars are that on diverse dates between 15th of May and 20th May 2024, at Nyitienge village in South Kamagambo Location, in Rongo Sub-County within Migori County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of E.A.O. a child aged 16 years.
In the Alternative count the Appellant was charged with the Offence of Committing an indecent Act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
The particulars are that on diverse dates between 15th of May and 20th May 2024, at Nyitienge village in South Kamagambo Location, in Rongo Sub-County within Migori County, the Appellant intentionally and unlawfully touched the vagina of E.A.O. a child aged 16 years.
The Trial Court considered the evidence of 5 prosecution witnesses and the Appellant’s sworn testimony and found the Appellant guilty for the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006.
The Appellant was aggrieved by the conviction and sentence of the subordinate court and he lodged his undated Petition of Appeal on 9th October 2024 on the following grounds:
a) That he pleaded not guilty to the charge herein.
b) That the Trial Courts go astray in law and facts by not discerning that the sentence enacted was harsh and excessive in the circumstances.
c) That the trial court blundered in both law and facts by not observing that the ingredients of the offence herein were not proven to the required standard in law.
d) THAT the trial court erred in law by failing to comply with Article 50(2)(b) of the Constitution of Kenya 2010
e) THAT the trial court never considered the defence of the Appellant.
f) THAT the evidence in record did not corroborate hence conviction could not be meted in the circumstances.
REASONS WHEREFORE the Appellant prayed that:
a). Conviction be quashed and sentence set aside;
b). Reduction of sentence
c). Retrial or any other order the court may deem fit to grant.
Prosecution’s case was supported by six (6) witnesses who testified as follows:
PW1 the Complainant herein testified and said that she was a Form 1 student at K.S.S. She said she was born on 20th February 2008 as per Certificate of Birth Ex P1. That on diverse dates in May 2024 she met the Appellant who asked if she was going to school and she answered in the affirmative but told him the students in her school were few. That the Appellant asked if the Complainant had all text books and she told him she did not have all text books. That the Appellant told her he had some text books but when the Complainant told him to give them to someone to take to her he refused and asked her to accompany him. That she accompanied him and met his sisters and she greeted them. That the Complainant told the Appellant that her school did not have teachers and books and the Appellant told her he was willing to support her as he knew she had no mother. PW1 said that her mother left and it was only her father who was supporting her.
That the Appellant asked her to remain with him so that he could pay her fees.
That on 20th May 2024 police officers went and arrested them from a house where she was living with the Appellant. She said that she was sleeping with the Appellant and they had unprotected sex for two days. She said that when they were arrested her father was present.
That upon arrest she was taken to the Police Station and to Ongo Hospital where she was examined and treated as shown in Ex P1, P3- Ex P2 and PRC form- Ex P3.
PW1 said she had known Charles the Appellant for 2 years.
In cross examination PW1 said that she told the Appellant that they did not have students in her school and she did not go to school on the 2 days she was with the Appellant.
PW2 the father to the Complainant testified that on 15th May 2025 the Complainant who was living with the grandmother was send but she did not return. That he started searching for her and found her at the homestead of Nyatiende and she was arrested together with the Appellant herein and taken to Chamgiwadu Police Station. That the Complainant did not inform him what happened. He said the Complainant is a student at K.S.S. He said he did not know the Appellant. He said that he was not certain of the Complainant’s age but she had a certificate of birth.
In cross examination PW2 said that on the day that the Complainant went missing it was sports day and she had not gone to school. That she had been send by her grandmother and she did not return.
PW3 Clifford Mboya a Clinical Officer at Rongo Sub-County Hospital examined the Complainant and filled P3 form for the history of having been defiled by her boyfriend between 15th to 20th May 2024
PW3 said the hymen was absent and there was no discharge on the genitalia. PW3 produced Treatment Notes, P3 and PRC forms as exhibits 2, 3 & 4.
PW4 P. C. Wilfred Geyo investigated the offence herein. He said the parents of the Complainant had reported on 19th May 2024 that she had disappeared from home and her whereabouts were unknown.
That on 20th May 2024 the father and grandfather of the Complainant went to the Station and informed them that they knew where the Complainant was. That in company of other officers and the father to the Complainant they proceeded to the home of the Appellant who opened the door to a house in the home and they found the Complainant sleeping on a mattress on the floor. That they took photographs at the scene and also saw the minor’s clothes hanged in the house.
PW4 said they arrested the Appellant and the minor and escorted them to the hospital where both were examined and treated and P3 filled.
PW4 said that the Complainant told them that she had gone to buy food at the market when she met the Appellant who convinced her to go to his home and he detained her for several days during which time he had unprotected sex with her.
PW4 produced the photographs taken at the scene and the Complainant’s certificate of birth.
When the Appellant was placed on defense he gave sworn statement and said that on 19th May 2024 he had gone to plough his farm and on return at 11.00am he found a lady playing with his siblings but he did not ask her anything. That when he returned home again at 4.oop.m he asked the lady to inform him her home. That he again left and returned at 6.00p.m and found her still at home. That when he asked if she goes to school she told him she does not go to school. That she asked if she could go to school if someone paid her school fees and she was in agreement. That he went to sleep in his house and left her in the main house. That later he was arrested when police came with the lady from the main house to his house. That they took photographs of them and he was taken to the Police Station and later to court.
In cross examination by the Prosecuting Counsel the Appellant said he met the Complainant when she went to their home and he was not her boyfriend. He said that the Complainant stayed in their home for one day and she slept at her sister Maureen’s house/home? He said police went to his house with the Complainant.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions are dated 7th August 2025 and are to the effect that he was sentenced to serve 20 years imprisonment whereas he was charged with offence under Section 8(1) as read with Section 8(4) which prescribes the minimum sentence as 15 years. He also submitted that the trial magistrate failed to exercise discretion in consideration that he is a first offender.
The Respondent’s submissions are dated 26th June 2025 and are to the effect that the sentence of 20 years is lawful and within the parameters of Section 8(4) of the Sexual Offences Act. That the trial Court had the discretion to impose a sentence above the minimum. The Respondent Counsel cited the Court of Appeal case of Christopher Ochieng Vs Republic [2018] eKLR where it was stated:
“A sentence is not illegal merely because it is at the higher end of the scale. What matters is that it falls within the statutory limits and is proportionate.”
It was submitted that the 20 years was lawful and the appeal on sentence has no merit.
On the grounds that the offence was not proved to the required standard, it was submitted that there was direct testimony by the Complainant who identified the Appellant. There was also medical evidence confirming penetration and documentary proof of the Complainant’s age.
The Respondent cited the authority in Mohammed Vs Republic [2008] KLR 561 where it was held that proof of penetration alone is sufficient to prove offence of defilement under the Act.
The Respondent also relied on the proviso to Section 124 of the Evidence Act which provides that the court may convict on the sole evidence of the victim of a sexual offence if it believes that the victim is telling the truth and records the reasons for its belief.
The Respondent further relied on the case of Kasinga Vs Republic where it was reiterated that the Complainant’s evidence does not need to be corroborated if the court believes it to be truthful and cogent.
The Respondent submitted that the Complainant was consistent, credible and her evidence was supported by medical evidence.
On ground 4, the Respondent’s Counsel submitted that the case involved a straightforward prosecution with clear direct evidence and the record shows that the Appellant was informed of the right to legal representation and he participated in the trial actively and was coherent. That he did not demonstrate that any substantial injustice was occasioned.
On the ground that the court failed to consider the Appellant’s defense, it was submitted that the Trial Magistrate’s judgment clearly indicates that the defense was considered and found to be mere denial. The holding in Republic Vs Oyier [2011] eKLR was cited where it was held:
“The accused’s defense must be considered and evaluated but it does not have to be believed. If it does not cast doubt on the prosecution case, then it is properly rejected”
It was submitted that the Trial Court properly applied the above principle and gave reasons for disbelieving the Appellant’s defense and there was no misdirection.
It was submitted that the appeal was a mere afterthought and an attempt to escape a lawful judgment of the court and should be dismissed.
ANALYSIS AND DETERMINATION
This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. In the case of Okeno v Republic [1972] EA 32, the East Africa Court of Appeal stated on the duty of the court on first appeal that:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination.”
Further, in the case of Mark Oiruri Mose vs R (2013) eKLR, it was reiterated that:
“… the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyze it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that.”
From the grounds of appeal, records of the trial court and the submissions, the following issues arise:
1. Whether the prosecution proved beyond all reasonable doubt that the offence of defilement was proved.
2. Whether the trial court failed to comply with Article 50(2)(b)
3. Whether the defence was considered
4. Whether the conviction was safe
5. Whether the sentence was lawful and proper
For the prosecution to sustain a conviction for the offence of defilement the key elements to be proved are: Age of the victim, Proof of Penetration and Identity of the perpetrator
On age of the victim a Birth Certificate was produced showing the date of birth as 20th February 2008, making her 16 years at the time of the offence. PW2 also confirmed that the Complainant was a school-going minor. This element was therefore proved beyond reasonable doubt.
On penetration, PW1 gave direct testimony that the Appellant had unprotected sex with her for two days while PW3 found the Complainant’s hymen was absent and findings on examination of her genital were consistent with sexual activity. As submitted by the Respondent Counsel and as held in Mohammed v Republic [2008] KLR 561, proof of penetration alone is sufficient to prove defilement. Penetration was therefore proved.
On identity of the perpetrator, PW1 knew the Appellant for two years.
She stayed with him in his house and PW4 found her sleeping on a mattress on the floor inside the Appellant’s house, with her belongings present. Identity was not in dispute and was firmly established.
The Appellant faulted the Trial Court for failing to Comply with Article 50(2)(h). From the proceedings in the trial court when the Appellant was arraigned in court, his rights under Article 50(2)(g) & (h) of the Constitution were explained to him and it is indicated he opted to represent himself. The Appellant participated in the trial actively by cross-examining witnesses and he was coherent. That he did not demonstrate that any substantial injustice was occasioned. The Appellant also effectively mounted his defence by giving sworn testimony and he ably responded to the prosecution questions in cross examination. The record does not show any ambiguity with the charge or prejudice suffered. Assertions of violation of Article 50(2)(b) therefore have no merit.
Whether the defense was considered, the trial court summarized the defense and addressed it in its analysis. The defense was a bare denial and did not cast doubt on the prosecution case and the trial court properly rejected it.
Whether conviction was safe, the prosecution proved the age of the Complainant, penetration and identity of the perpetrator. There were no material contradictions in the prosecution’s evidence and the testimony of PW1 was consistent and was supported by medical evidence and police testimony.
Under the proviso to Section 124, the court was entitled to convict on the complainant’s evidence if credible. The conviction was therefore safe.
On whether the sentence was harsh and excessive the Appellant was sentenced to 20 years’ imprisonment. Section 8(4) prescribes a minimum of 15 years. The trial magistrate while sentencing the Appellant acknowledged that the penalty prescribed under Section 8(4) is 15 years but went ahead to sentence him to 20 years imprisonment without considering that the Appellant was 17 years old as indicated in the treatment notes from Rongo Sub-County Hospital where he was examined and treated upon arrest. If it is true that he committed the offence when he was 17 years old, barely one year older than the Complainant then he was a minor and under the Children Act 2022 he was not supposed to be incarcerated in the prison with adult offenders. The Trial Court also ought to have weighed his mitigation against the aggravating factors and circumstances of the offence before taking this drastic and punitive decision which may not achieve the objectives of sentencing as provided in the Sentencing Policy Guidelines 2023. In the circumstances this court sets aside the sentence of 20years and substitute it with 3 years probation supervision.
In conclusion, the appeal against conviction is hereby dismissed. The appeal against sentence is allowed and consequently the sentence of 20 years imprisonment is set aside and substituted thereof with probation supervision for 3 years.
Right of appeal within 14 days.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 19TH DAY OF FEBRUARY, 2026.
The particulars are that on diverse dates between 15th of May and 20th May 2024, at Nyitienge village in South Kamagambo Location, in Rongo Sub-County within Migori County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of E.A.O. a child aged 16 years.
In the Alternative count the Appellant was charged with the Offence of Committing an indecent Act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
The particulars are that on diverse dates between 15th of May and 20th May 2024, at Nyitienge village in South Kamagambo Location, in Rongo Sub-County within Migori County, the Appellant intentionally and unlawfully touched the vagina of E.A.O. a child aged 16 years.
The Trial Court considered the evidence of 5 prosecution witnesses and the Appellant’s sworn testimony and found the Appellant guilty for the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006.
The Appellant was aggrieved by the conviction and sentence of the subordinate court and he lodged his undated Petition of Appeal on 9th October 2024 on the following grounds:
a) That he pleaded not guilty to the charge herein.
b) That the Trial Courts go astray in law and facts by not discerning that the sentence enacted was harsh and excessive in the circumstances.
c) That the trial court blundered in both law and facts by not observing that the ingredients of the offence herein were not proven to the required standard in law.
d) THAT the trial court erred in law by failing to comply with Article 50(2)(b) of the Constitution of Kenya 2010
e) THAT the trial court never considered the defence of the Appellant.
f) THAT the evidence in record did not corroborate hence conviction could not be meted in the circumstances.
REASONS WHEREFORE the Appellant prayed that:
a). Conviction be quashed and sentence set aside;
b). Reduction of sentence
c). Retrial or any other order the court may deem fit to grant.
Prosecution’s case was supported by six (6) witnesses who testified as follows:
PW1 the Complainant herein testified and said that she was a Form 1 student at K.S.S. She said she was born on 20th February 2008 as per Certificate of Birth Ex P1. That on diverse dates in May 2024 she met the Appellant who asked if she was going to school and she answered in the affirmative but told him the students in her school were few. That the Appellant asked if the Complainant had all text books and she told him she did not have all text books. That the Appellant told her he had some text books but when the Complainant told him to give them to someone to take to her he refused and asked her to accompany him. That she accompanied him and met his sisters and she greeted them. That the Complainant told the Appellant that her school did not have teachers and books and the Appellant told her he was willing to support her as he knew she had no mother. PW1 said that her mother left and it was only her father who was supporting her.
That the Appellant asked her to remain with him so that he could pay her fees.
That on 20th May 2024 police officers went and arrested them from a house where she was living with the Appellant. She said that she was sleeping with the Appellant and they had unprotected sex for two days. She said that when they were arrested her father was present.
That upon arrest she was taken to the Police Station and to Ongo Hospital where she was examined and treated as shown in Ex P1, P3- Ex P2 and PRC form- Ex P3.
PW1 said she had known Charles the Appellant for 2 years.
In cross examination PW1 said that she told the Appellant that they did not have students in her school and she did not go to school on the 2 days she was with the Appellant.
PW2 the father to the Complainant testified that on 15th May 2025 the Complainant who was living with the grandmother was send but she did not return. That he started searching for her and found her at the homestead of Nyatiende and she was arrested together with the Appellant herein and taken to Chamgiwadu Police Station. That the Complainant did not inform him what happened. He said the Complainant is a student at K.S.S. He said he did not know the Appellant. He said that he was not certain of the Complainant’s age but she had a certificate of birth.
In cross examination PW2 said that on the day that the Complainant went missing it was sports day and she had not gone to school. That she had been send by her grandmother and she did not return.
PW3 Clifford Mboya a Clinical Officer at Rongo Sub-County Hospital examined the Complainant and filled P3 form for the history of having been defiled by her boyfriend between 15th to 20th May 2024
PW3 said the hymen was absent and there was no discharge on the genitalia. PW3 produced Treatment Notes, P3 and PRC forms as exhibits 2, 3 & 4.
PW4 P. C. Wilfred Geyo investigated the offence herein. He said the parents of the Complainant had reported on 19th May 2024 that she had disappeared from home and her whereabouts were unknown.
That on 20th May 2024 the father and grandfather of the Complainant went to the Station and informed them that they knew where the Complainant was. That in company of other officers and the father to the Complainant they proceeded to the home of the Appellant who opened the door to a house in the home and they found the Complainant sleeping on a mattress on the floor. That they took photographs at the scene and also saw the minor’s clothes hanged in the house.
PW4 said they arrested the Appellant and the minor and escorted them to the hospital where both were examined and treated and P3 filled.
PW4 said that the Complainant told them that she had gone to buy food at the market when she met the Appellant who convinced her to go to his home and he detained her for several days during which time he had unprotected sex with her.
PW4 produced the photographs taken at the scene and the Complainant’s certificate of birth.
When the Appellant was placed on defense he gave sworn statement and said that on 19th May 2024 he had gone to plough his farm and on return at 11.00am he found a lady playing with his siblings but he did not ask her anything. That when he returned home again at 4.oop.m he asked the lady to inform him her home. That he again left and returned at 6.00p.m and found her still at home. That when he asked if she goes to school she told him she does not go to school. That she asked if she could go to school if someone paid her school fees and she was in agreement. That he went to sleep in his house and left her in the main house. That later he was arrested when police came with the lady from the main house to his house. That they took photographs of them and he was taken to the Police Station and later to court.
In cross examination by the Prosecuting Counsel the Appellant said he met the Complainant when she went to their home and he was not her boyfriend. He said that the Complainant stayed in their home for one day and she slept at her sister Maureen’s house/home? He said police went to his house with the Complainant.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions are dated 7th August 2025 and are to the effect that he was sentenced to serve 20 years imprisonment whereas he was charged with offence under Section 8(1) as read with Section 8(4) which prescribes the minimum sentence as 15 years. He also submitted that the trial magistrate failed to exercise discretion in consideration that he is a first offender.
The Respondent’s submissions are dated 26th June 2025 and are to the effect that the sentence of 20 years is lawful and within the parameters of Section 8(4) of the Sexual Offences Act. That the trial Court had the discretion to impose a sentence above the minimum. The Respondent Counsel cited the Court of Appeal case of Christopher Ochieng Vs Republic [2018] eKLR where it was stated:
“A sentence is not illegal merely because it is at the higher end of the scale. What matters is that it falls within the statutory limits and is proportionate.”
It was submitted that the 20 years was lawful and the appeal on sentence has no merit.
On the grounds that the offence was not proved to the required standard, it was submitted that there was direct testimony by the Complainant who identified the Appellant. There was also medical evidence confirming penetration and documentary proof of the Complainant’s age.
The Respondent cited the authority in Mohammed Vs Republic [2008] KLR 561 where it was held that proof of penetration alone is sufficient to prove offence of defilement under the Act.
The Respondent also relied on the proviso to Section 124 of the Evidence Act which provides that the court may convict on the sole evidence of the victim of a sexual offence if it believes that the victim is telling the truth and records the reasons for its belief.
The Respondent further relied on the case of Kasinga Vs Republic where it was reiterated that the Complainant’s evidence does not need to be corroborated if the court believes it to be truthful and cogent.
The Respondent submitted that the Complainant was consistent, credible and her evidence was supported by medical evidence.
On ground 4, the Respondent’s Counsel submitted that the case involved a straightforward prosecution with clear direct evidence and the record shows that the Appellant was informed of the right to legal representation and he participated in the trial actively and was coherent. That he did not demonstrate that any substantial injustice was occasioned.
On the ground that the court failed to consider the Appellant’s defense, it was submitted that the Trial Magistrate’s judgment clearly indicates that the defense was considered and found to be mere denial. The holding in Republic Vs Oyier [2011] eKLR was cited where it was held:
“The accused’s defense must be considered and evaluated but it does not have to be believed. If it does not cast doubt on the prosecution case, then it is properly rejected”
It was submitted that the Trial Court properly applied the above principle and gave reasons for disbelieving the Appellant’s defense and there was no misdirection.
It was submitted that the appeal was a mere afterthought and an attempt to escape a lawful judgment of the court and should be dismissed.
ANALYSIS AND DETERMINATION
This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. In the case of Okeno v Republic [1972] EA 32, the East Africa Court of Appeal stated on the duty of the court on first appeal that:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination.”
Further, in the case of Mark Oiruri Mose vs R (2013) eKLR, it was reiterated that:
“… the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyze it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that.”
From the grounds of appeal, records of the trial court and the submissions, the following issues arise:
1. Whether the prosecution proved beyond all reasonable doubt that the offence of defilement was proved.
2. Whether the trial court failed to comply with Article 50(2)(b)
3. Whether the defence was considered
4. Whether the conviction was safe
5. Whether the sentence was lawful and proper
For the prosecution to sustain a conviction for the offence of defilement the key elements to be proved are: Age of the victim, Proof of Penetration and Identity of the perpetrator
On age of the victim a Birth Certificate was produced showing the date of birth as 20th February 2008, making her 16 years at the time of the offence. PW2 also confirmed that the Complainant was a school-going minor. This element was therefore proved beyond reasonable doubt.
On penetration, PW1 gave direct testimony that the Appellant had unprotected sex with her for two days while PW3 found the Complainant’s hymen was absent and findings on examination of her genital were consistent with sexual activity. As submitted by the Respondent Counsel and as held in Mohammed v Republic [2008] KLR 561, proof of penetration alone is sufficient to prove defilement. Penetration was therefore proved.
On identity of the perpetrator, PW1 knew the Appellant for two years.
She stayed with him in his house and PW4 found her sleeping on a mattress on the floor inside the Appellant’s house, with her belongings present. Identity was not in dispute and was firmly established.
The Appellant faulted the Trial Court for failing to Comply with Article 50(2)(h). From the proceedings in the trial court when the Appellant was arraigned in court, his rights under Article 50(2)(g) & (h) of the Constitution were explained to him and it is indicated he opted to represent himself. The Appellant participated in the trial actively by cross-examining witnesses and he was coherent. That he did not demonstrate that any substantial injustice was occasioned. The Appellant also effectively mounted his defence by giving sworn testimony and he ably responded to the prosecution questions in cross examination. The record does not show any ambiguity with the charge or prejudice suffered. Assertions of violation of Article 50(2)(b) therefore have no merit.
Whether the defense was considered, the trial court summarized the defense and addressed it in its analysis. The defense was a bare denial and did not cast doubt on the prosecution case and the trial court properly rejected it.
Whether conviction was safe, the prosecution proved the age of the Complainant, penetration and identity of the perpetrator. There were no material contradictions in the prosecution’s evidence and the testimony of PW1 was consistent and was supported by medical evidence and police testimony.
Under the proviso to Section 124, the court was entitled to convict on the complainant’s evidence if credible. The conviction was therefore safe.
On whether the sentence was harsh and excessive the Appellant was sentenced to 20 years’ imprisonment. Section 8(4) prescribes a minimum of 15 years. The trial magistrate while sentencing the Appellant acknowledged that the penalty prescribed under Section 8(4) is 15 years but went ahead to sentence him to 20 years imprisonment without considering that the Appellant was 17 years old as indicated in the treatment notes from Rongo Sub-County Hospital where he was examined and treated upon arrest. If it is true that he committed the offence when he was 17 years old, barely one year older than the Complainant then he was a minor and under the Children Act 2022 he was not supposed to be incarcerated in the prison with adult offenders. The Trial Court also ought to have weighed his mitigation against the aggravating factors and circumstances of the offence before taking this drastic and punitive decision which may not achieve the objectives of sentencing as provided in the Sentencing Policy Guidelines 2023. In the circumstances this court sets aside the sentence of 20years and substitute it with 3 years probation supervision.
In conclusion, the appeal against conviction is hereby dismissed. The appeal against sentence is allowed and consequently the sentence of 20 years imprisonment is set aside and substituted thereof with probation supervision for 3 years.
Right of appeal within 14 days.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 19TH DAY OF FEBRUARY, 2026.