REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. E065 OF 2024
CHRISANTUS SHALUM BOIYO alias HOMELAND……….APPELLANT
VERSUS
REPUBLIC……………………………………………………..RESPONDENT
(Being an appeal from the conviction and sentence of Hon. G. Adhiambo (SPM) in Bungoma S.O Case No. E080 of 2023 on 6th March 2024)
JUDGEMENT
1. This appeal is against the sentence of TEN (10) years’ imprisonment for defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. It was alleged that on 26th August 2023 at [particular withheld] Location, in Mt. Elgon Sub-County, within Bungoma County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of V.C a child aged 14 years old.
2. In the alternative charge, the appellant was charged with the offence of committing an indecent act contrary to Section11(1) of the Sexual Offences Act No. 3 of 2006. It was alleged that on 26th August 2023 at [particular withheld] Location, in Mt. Elgon Sub-County, within Bungoma County, the appellant intentionally touched the vagina of V.C a child aged 14 years old with his penis.
3. The Respondent called Seven (7) witnesses. The defence called two witnesses.
4. After a brief voire dire examination, the trial Court established the victim was intelligent, understood the importance of telling the truth and the effect of oath taking and ruled that she could give a sworn testimony.
5. The Respondent’s case was that the victim in this matter who gave evidence as PW1 was born on 8th May 2009, and was15 years old. She resided with her grandmother at [particulars withheld] within Bungoma County and was attending school. at [particulars withheld] Secondary School in form 1.
6. PW1 testified that on 26th August 2023, while in the company of her aunty Cynthia C, her grandmother has sent her to her maternal aunty, Emma to notify her that the grandmother needed her assistance in harvesting millet and beans. On their way back home at around 7 p.m., dogs started to chase them prompting them to flee to safety and in the process PW1 lost one of her sandals. That as they were about 400 meters from their home, they met the Appellant herein, a neighbor, commonly referred to as Homeland who got hold of them and while welding a knife threatened to stab them if they screamed. He further told them that he was going to take them to Kamasielo on grounds that he had authority to arrest them for loitering at night and that he intended to hand them over to the police. That the Appellant then forced them to retrace their steps, supposedly so as to retrieve the lost sandal. While on the way they encountered an old man and the appellant handed over Cynthia C to the old man, while he held onto PW1 and they kept walking but the Appellant suddenly stopped and told the old man that each one of them was to deal with the girl that was in his control. The Appellant then started fiddling with the victim’s chest and the latter screamed and she asked Cynthia whether she knew of what the Appellant was doing to her. This witness told the court that the appellant then forcefully placed her on the ground and attempted on lay on top of her while moving her shirt upwards. That the Appellant strangled the victim with the lace of her jumper but she resisted, pushed him and held him down. The appellant then attempted to bite PW1 but she instead directed his hand to his mouth. Later on the victim’s mother, grandmother, grandfather Tarit and Mercy arrived at the scene and found the Appellant still holding onto the victim’s neck as he continued to strangle her. He was then apprehended and was taken to Kongit Police station. PW1 sustained injuries on her knees and left thumb. That she also went to the police station and thereafter to hospital. She was later issued with a P3form.
7. On cross-examination, she told the Court that she was a form one student and that her home was about 100 meters from where they met the Appellant. She told the Court that the Appellant threatened to kill her that was why they agreed to accompany the Appellant back to where she had lost her shoe.
8. PW2, CC was subjected to voire dire examination and thereafter gave sworn testimony. She testified that she was 16 years old and a form 3 Secondary School student. She recalled on 26th August 2023, her mother sent her together with PW1 to her sister Emma and at around 7 p.m. as the rains were about to start they quickly made their way back home and a certain dog started chasing them prompting them to flee to safety. As they ran, PW1 noted that she lost her slipper and she mentioned that there was no need for them to head back just to search for a slipper. As they continued with their journey back home on approaching a certain corner they met the Appellant herein, a neighbor, who they commonly referred to as Homeland, and he inquired about where they were coming from. She told the Court that she then told the Appellant that they were heading home from her sister’s, Emma’s place and that her mother had sent them on an errand. That the Appellant disbelieved them and maintained that had her mother sent them, then they would have been carrying either water or maize flour. The Appellant then told them that the police had authorized him to arrest anyone whom he found walking after 6p.m. He told them that he could call the police to come and arrest them and they told him that the only place they were going to was back home. He proceeded to tell them how he could take them up to Kapsokwony and dump them there at 3 a.m. and shortly thereafter someone screamed and he wished that the person would join him so that they would be two of them and after a short while an old man arrived and inquired as to the reason that the Appellant was detaining children at that time of the night. The Appellant then handed this witness over to the old man and told the man to ensure that she does not escape. The Appellant then threatened them with a knife and told them not to scream least he be forced to stab them.they screamed he will stab. He later told them that if they wanted to go home they should first all go back and pick the lost slipper. He held onto PW1 and the other man held this witness as they escorted them back to where they were coming from. Upon reaching a certain stream close to where PW1had lost her slipper, they stopped and the Appellant advised the old man that each of them was to deal with the girl that under his control. She told the Court that it then became apparent that the two men intended to rape them. This witness testified that at that juncture, the Appellant pulled PW1 aside as she remained at the stream. The old man then told her that he wished to marry her but she told him that he was the same age as her father and that she was still a student. The person suggested that they head to his place and have sex but she declined that suggestion. She then heard PW1 shouting and on running to where they were, the Appellant admonished her and even threaten to stab her. When the person who was holding her tried to remove her jumper she pushed him off her and ran home and alerted her family members of what was happening to PW1. She remained at home as her mother, father and sister proceeded to the scene. She told the Court that they only returned home at 3.00 a.m. and notified her that they were at the Police Station where they had recorded their statements. This witness maintained that she had seen the appellant well as at the time had had stopped them, at 7 p.m it had not been dark yet. She thus made a dock identification of the perpetrator as the Appellant in Court.
9. On cross-examination, she told the Court that she was 16 years old and not 17 years old and that they met the Appellant close to their home and there were houses close by but they could not scream. She insisted that the person who held her, inflicted no injuries on her and that the Appellant had a knife, and that she is the one who directed her family members on where to trace PW1.
10. PW3, Mercy Chepkwemoi, testified that PW1 was her daughter while PW2 was her sister. She recalled on 26th August 2023, she arrived home from church at about 6.00 p.m. and when she did find PW1 and PW2 at home, she established from her mother that they had gone to her sister’s place. That at 7.40 p.m. the girls had not reached home and she the rung her sister and was old that they had already left her house at 7 p. when it had started raining. This witness testified that they awaited the girls until 9.00 p.m to no avail where after they proceeded to sleep. At about 11.00 p.m. PW2 arrived home screaming and calling out to their mother and on going outside they established that the Appellant, a neighbor commonly referred to as Homeland, had held them hostage near their home and in the company of another man, had taken the girls back across the river. That she took a d-light and followed the directions given to her by PW2 to the scene. Her parents followed her and upon reaching the river she heard the voice of the Appellant. As her parents arrived they strategically surrounded the area that the voice was emanating from. She directed the light towards the scene and called out for PW, who then screamed and they were then able to trace her. They found PW1 on the ground while still struggling with the Appellant. As she moved closer to them, PW1 alerted her that the Appellant had a knife. That, with the assistance of her parents, she managed to pin the Appellant down. They quickly established from PW1 that the Appellant was not successful in raping her and they apprehended the Appellant, took him to the Police Station and took PW1 to Kaptama Health Centre for treatment.
11. On cross-examination, PW3 told the Court that PW2 came back home screaming and that she found the Appellant in the act. She told the Court that the Appellant resides 100 meters from them.
12. PW4, Chesikon Ndiema Tarit, testified that on 26th August 2023 at around 11.00 p.m. while sleeping he heard PW2 screaming telling them to run and save PW1 as she was been held by the Appellant herein. He told the Court that the Appellant was popularly known to them as Homeland and that when they arrived at the scene with his wife and child they found him holding PW1 attempting to rape her. He told the Court that the Appellant is a neighbor and they have known him for over 5 years.
13. On cross-examination, he told the Court that he is only testifying on what he saw and that he knows the Appellant.
14. PW5, Carolyne Chebajomo Maasai, testified that on 26th August 2023 at around 5 p.m. she sent PW1 and PW2 to her daughter Emma and after a long wait for their return they reached out to Emma who told them that the girls had already left her house at around 7 p.m. At around 10 p.m. PW2 arrived, panting and shouting, that the Appellant was killing PW1 and that she had managed to escape from the man who was holding her hostage. PW5 told the court that her husband, her daughter and herself, quickly proceeded to the scene as directed by PW2 and found the Appellant holding PW1 on the ground. That they managed to apprehend the Appellant herein and handed him over to the police. She told the Court that she knew the Appellant very well prior to the incident as he was a neighbor and, on that night, she had on a Dlight lamp that aided in identifying the Appellant. She did a dock identification of the perpetrator as the Appellant before the Court.
15. On cross-examination, she told the Court that the Appellant intended to rape PW1 and that they found him right in the act.
16. PW6, Paul Chengweyo Matui, testified that he was a clinical officer based in Bungoma County, Kaplamei Health Centre. He told the Court that on 27th August 2023, PW1 visited the facility alleging that a person well known to her had attempted to defile her on 26th August 2023. He observed that PW1 had sustained injuries on the neck and knee joint consistent to a struggle. On examining her he noted that she was stable, had tenderness on the neck with bruises on the left knee and on examining her genitals, PW1 had normal external genitalia and her hymen was still intact. Based on the sustained injuries he concluded that PW1 was a victim of an attempted defilement which left her with soft tissue injuries. He produced in Court PW1’s P3 form which he filled on 27th August 2023 and treatment notes as PEXH 1 and PEXH 2.
17. On cross-examination, he told the Court that he was the one who treated PW1 and that what he filled in the P3 form was truthful and that he never examined the Appellant as he was never availed for any examination.
18. PW7, No. 695663 PC Japheth Mutua, testified that he was formerly stationed at Kapatama Police Station in Mt. Elgon. He recalled on 27trh August 2023, acting on a report of a case of defilement lodged at Kongit Police Post. They proceeded to Kongit wherein they established that the Appellant herein was arrested in relation to a case of defilement. He recorded witness statements and proceeded to the scene which was near Sandera River in Kongit. He established that the incident occurred on 26th August 2023, while PW1 and PW2 were heading home from their aunt’s home when the Appellant accosted, interrogated and derailed them from their route heading home. On investigations he found out that the Appellant used a knife to threaten PW1 and PW2 into following his instructions and another person not known to them joined them. A struggle ensued and PW2 was able to break free from the unknown person and seek help home from her and the parents and sisters quickly acting on PW2’s information, proceeded to the scene where they found the Appellant and PW1 on the ground struggling as he attempted to defile her. In a careful crafted plan, they surrounded the Appellant and accosted him as per PW1, he had a knife. They apprehended the Appellant and later took him to Kongit police station wherein a report was officially lodged and they later proceeded to the Mt. Elgon Sub-County Hospital to seek medical assistance. After investigations he charged the Appellant herein with the offence. He told the Court that at the time of the ordeal the PW1 was 14 years old and he produced in Court a copy of her Birth Certificate as PEXH 1.
19. On cross-examination, he told the Court that there was evidence of a struggle at the scene of crime and that he is the one who conducted the investigations.
20. Upon being put on his defence, the Appellant denied the offence. He told the Court that on the date of the incident he was at work, as usual and after he had spent time with his wife, they went to sleep after concluding their evening chores. At around 9.30 p.m. someone knocked his door and his wife opened assuming it was his friends who had come to check in on him only for his wife to tell him that four strangers were looking for him. He then boarded a motorbike with the strangers who informed him that they were heading to the police post to collect an OB and thereafter he was to take them to a place of their choice. The appellant testified that when they got to the police post, he was arrested and placed in the cell and was not given any reason for his arrest.
21. On cross-examination, he told the Court that on the day of the incident he never left his home and that he does not know PW1.
22. DW2, Edna Khwakamalasi, testified that the Appellant herein is her husband and that on 26th August 2023, she ran errands with her husband and then headed back home. They prepared supper, ate and went to sleep only to be woken up by a knock on the door at 9.30 p.m. and on opening she saw four young men who asked for the Appellant. She heard them speak in Sabaot and since she is not versed in the language she assumed that they wanted him to take them somewhere. The men left with the Appellant and he never returned home. She told the Court that she only learnt of her husband’s arrest from a neighbor.
23. On cross-examination, she told the Court that on that date they were out on errands like doing laundry, slashing and plucking firewood as the Appellant did not work on weekends.
24. The trial Court evaluated the evidence and made a finding view that the Respondent had proved its case beyond reasonable doubt and the court hence convicted the Appellant on the main count. The Appellant was consequently sentenced to serve Ten (10) years imprisonment.
25. Dissatisfied with the conviction and sentence, the Appellant filed a petition of appeal listing seven (5) grounds of appeal:
a. That the Appellant is a first offender and remorseful for the offence committed.
b. That this appeal is not against the sentence but merely requesting for this Honourable Court to consider reducing the same on humanitarian grounds.
c. That the Appellant’s family is very poor and his wife is un-employed. The Appellant is the sole bread winner and the prolonged sentence subjects his family to severe suffering hence the request for the reduction of sentence.
d. That this Court considers reducing the sentence as imposed on humanitarian grounds.
e. That the Appellant wishes to raise more grounds at the hearing of the appeal.
26. The appeal proceeded through written submissions; Both parties filed submissions.
27. As a first appellate Court, I must reconsider and evaluate the evidence in the Court below to arrive at an independent conclusion while bearing in mind that I did not hear or see the witness. In Kiilu & Another V Republic, [2005] 1 KLR 174, the Court of Appeal set out the duties of a first appellate court as follows:-
“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; 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.”
28. Guided by the above principle, I have carefully considered the grounds of appeal, the evidence presented before the trial Court, and the written submissions filed by the parties herein. I have also read the judgment of the trial Court. Having done so, I find that the issue for my determination is whether this Court can reduce the sentence as meted out by the trial Court.
29. The trial Magistrate made the following observations in her Judgement:
a. Section 8(1) of the Sexual Offences Act- a person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
b. Section 8(3) Sexual Offences Act-A person who commits an offence of defilement with child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
c. Section 11 (1) of Sexual Offences Act- A person who commits an offence of indecent act with a child is guilty of the offence of indecent act with a child and is liable upon conviction to imprisonment of not less than ten years.
d. Section 9(1) of the Sexual Offences Act- A person who commits an offence of attempted defilement with a child is liable upon conviction of imprisonment for a term of not less than ten years.
30. Section 9(2) of the Sexual Offence Act clearly provides for a minimum of 10 years’ imprisonment. A trial Court exercising discretion is at liberty to sentence a convicted person to a custodial term way above the 10 years statutory prescribed floor, depending on the aggravating circumstances of the case at hand. In this case the Appellant was sentenced to the minimum ten (10) years’ imprisonment.
31. The Supreme Court in Republic Versus Joshua Gichuki Mwangi & Others Petition NO18 of 2023 (2024) KESC 24 (12 July 2024) declared that the minimum mandatory sentences prescribed by the Sexual Offences Act are lawful as long as the said Act remains in force. The Supreme Court emphasized the need by the three arms of Government to respect and uphold the doctrine of separation of powers; the role of this court is to interpret the law, while parliament makes the law.
32. On the balance I find that the sentence of Ten (10) years imprisonment that was meted upon the Appellant herein is proper and lawful. The same was not excessive or harsh.
33. In view of the foregoing, I find that the appeal on sentence lacks merit and I hereby dismiss it.
34. This file is marked as closed.
It is so ordered.
Delivered, Signed and Dated at Bungoma this 31st day of July 2025.
M.S.Shariff
Judge
In the presence of:
Ms Kibet for Respondent
Appellant
Peter Machoni- Court Assistant
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. E065 OF 2024
CHRISANTUS SHALUM BOIYO alias HOMELAND……….APPELLANT
VERSUS
REPUBLIC……………………………………………………..RESPONDENT
(Being an appeal from the conviction and sentence of Hon. G. Adhiambo (SPM) in Bungoma S.O Case No. E080 of 2023 on 6th March 2024)
JUDGEMENT
1. This appeal is against the sentence of TEN (10) years’ imprisonment for defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. It was alleged that on 26th August 2023 at [particular withheld] Location, in Mt. Elgon Sub-County, within Bungoma County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of V.C a child aged 14 years old.
2. In the alternative charge, the appellant was charged with the offence of committing an indecent act contrary to Section11(1) of the Sexual Offences Act No. 3 of 2006. It was alleged that on 26th August 2023 at [particular withheld] Location, in Mt. Elgon Sub-County, within Bungoma County, the appellant intentionally touched the vagina of V.C a child aged 14 years old with his penis.
3. The Respondent called Seven (7) witnesses. The defence called two witnesses.
4. After a brief voire dire examination, the trial Court established the victim was intelligent, understood the importance of telling the truth and the effect of oath taking and ruled that she could give a sworn testimony.
5. The Respondent’s case was that the victim in this matter who gave evidence as PW1 was born on 8th May 2009, and was15 years old. She resided with her grandmother at [particulars withheld] within Bungoma County and was attending school. at [particulars withheld] Secondary School in form 1.
6. PW1 testified that on 26th August 2023, while in the company of her aunty Cynthia C, her grandmother has sent her to her maternal aunty, Emma to notify her that the grandmother needed her assistance in harvesting millet and beans. On their way back home at around 7 p.m., dogs started to chase them prompting them to flee to safety and in the process PW1 lost one of her sandals. That as they were about 400 meters from their home, they met the Appellant herein, a neighbor, commonly referred to as Homeland who got hold of them and while welding a knife threatened to stab them if they screamed. He further told them that he was going to take them to Kamasielo on grounds that he had authority to arrest them for loitering at night and that he intended to hand them over to the police. That the Appellant then forced them to retrace their steps, supposedly so as to retrieve the lost sandal. While on the way they encountered an old man and the appellant handed over Cynthia C to the old man, while he held onto PW1 and they kept walking but the Appellant suddenly stopped and told the old man that each one of them was to deal with the girl that was in his control. The Appellant then started fiddling with the victim’s chest and the latter screamed and she asked Cynthia whether she knew of what the Appellant was doing to her. This witness told the court that the appellant then forcefully placed her on the ground and attempted on lay on top of her while moving her shirt upwards. That the Appellant strangled the victim with the lace of her jumper but she resisted, pushed him and held him down. The appellant then attempted to bite PW1 but she instead directed his hand to his mouth. Later on the victim’s mother, grandmother, grandfather Tarit and Mercy arrived at the scene and found the Appellant still holding onto the victim’s neck as he continued to strangle her. He was then apprehended and was taken to Kongit Police station. PW1 sustained injuries on her knees and left thumb. That she also went to the police station and thereafter to hospital. She was later issued with a P3form.
7. On cross-examination, she told the Court that she was a form one student and that her home was about 100 meters from where they met the Appellant. She told the Court that the Appellant threatened to kill her that was why they agreed to accompany the Appellant back to where she had lost her shoe.
8. PW2, CC was subjected to voire dire examination and thereafter gave sworn testimony. She testified that she was 16 years old and a form 3 Secondary School student. She recalled on 26th August 2023, her mother sent her together with PW1 to her sister Emma and at around 7 p.m. as the rains were about to start they quickly made their way back home and a certain dog started chasing them prompting them to flee to safety. As they ran, PW1 noted that she lost her slipper and she mentioned that there was no need for them to head back just to search for a slipper. As they continued with their journey back home on approaching a certain corner they met the Appellant herein, a neighbor, who they commonly referred to as Homeland, and he inquired about where they were coming from. She told the Court that she then told the Appellant that they were heading home from her sister’s, Emma’s place and that her mother had sent them on an errand. That the Appellant disbelieved them and maintained that had her mother sent them, then they would have been carrying either water or maize flour. The Appellant then told them that the police had authorized him to arrest anyone whom he found walking after 6p.m. He told them that he could call the police to come and arrest them and they told him that the only place they were going to was back home. He proceeded to tell them how he could take them up to Kapsokwony and dump them there at 3 a.m. and shortly thereafter someone screamed and he wished that the person would join him so that they would be two of them and after a short while an old man arrived and inquired as to the reason that the Appellant was detaining children at that time of the night. The Appellant then handed this witness over to the old man and told the man to ensure that she does not escape. The Appellant then threatened them with a knife and told them not to scream least he be forced to stab them.they screamed he will stab. He later told them that if they wanted to go home they should first all go back and pick the lost slipper. He held onto PW1 and the other man held this witness as they escorted them back to where they were coming from. Upon reaching a certain stream close to where PW1had lost her slipper, they stopped and the Appellant advised the old man that each of them was to deal with the girl that under his control. She told the Court that it then became apparent that the two men intended to rape them. This witness testified that at that juncture, the Appellant pulled PW1 aside as she remained at the stream. The old man then told her that he wished to marry her but she told him that he was the same age as her father and that she was still a student. The person suggested that they head to his place and have sex but she declined that suggestion. She then heard PW1 shouting and on running to where they were, the Appellant admonished her and even threaten to stab her. When the person who was holding her tried to remove her jumper she pushed him off her and ran home and alerted her family members of what was happening to PW1. She remained at home as her mother, father and sister proceeded to the scene. She told the Court that they only returned home at 3.00 a.m. and notified her that they were at the Police Station where they had recorded their statements. This witness maintained that she had seen the appellant well as at the time had had stopped them, at 7 p.m it had not been dark yet. She thus made a dock identification of the perpetrator as the Appellant in Court.
9. On cross-examination, she told the Court that she was 16 years old and not 17 years old and that they met the Appellant close to their home and there were houses close by but they could not scream. She insisted that the person who held her, inflicted no injuries on her and that the Appellant had a knife, and that she is the one who directed her family members on where to trace PW1.
10. PW3, Mercy Chepkwemoi, testified that PW1 was her daughter while PW2 was her sister. She recalled on 26th August 2023, she arrived home from church at about 6.00 p.m. and when she did find PW1 and PW2 at home, she established from her mother that they had gone to her sister’s place. That at 7.40 p.m. the girls had not reached home and she the rung her sister and was old that they had already left her house at 7 p. when it had started raining. This witness testified that they awaited the girls until 9.00 p.m to no avail where after they proceeded to sleep. At about 11.00 p.m. PW2 arrived home screaming and calling out to their mother and on going outside they established that the Appellant, a neighbor commonly referred to as Homeland, had held them hostage near their home and in the company of another man, had taken the girls back across the river. That she took a d-light and followed the directions given to her by PW2 to the scene. Her parents followed her and upon reaching the river she heard the voice of the Appellant. As her parents arrived they strategically surrounded the area that the voice was emanating from. She directed the light towards the scene and called out for PW, who then screamed and they were then able to trace her. They found PW1 on the ground while still struggling with the Appellant. As she moved closer to them, PW1 alerted her that the Appellant had a knife. That, with the assistance of her parents, she managed to pin the Appellant down. They quickly established from PW1 that the Appellant was not successful in raping her and they apprehended the Appellant, took him to the Police Station and took PW1 to Kaptama Health Centre for treatment.
11. On cross-examination, PW3 told the Court that PW2 came back home screaming and that she found the Appellant in the act. She told the Court that the Appellant resides 100 meters from them.
12. PW4, Chesikon Ndiema Tarit, testified that on 26th August 2023 at around 11.00 p.m. while sleeping he heard PW2 screaming telling them to run and save PW1 as she was been held by the Appellant herein. He told the Court that the Appellant was popularly known to them as Homeland and that when they arrived at the scene with his wife and child they found him holding PW1 attempting to rape her. He told the Court that the Appellant is a neighbor and they have known him for over 5 years.
13. On cross-examination, he told the Court that he is only testifying on what he saw and that he knows the Appellant.
14. PW5, Carolyne Chebajomo Maasai, testified that on 26th August 2023 at around 5 p.m. she sent PW1 and PW2 to her daughter Emma and after a long wait for their return they reached out to Emma who told them that the girls had already left her house at around 7 p.m. At around 10 p.m. PW2 arrived, panting and shouting, that the Appellant was killing PW1 and that she had managed to escape from the man who was holding her hostage. PW5 told the court that her husband, her daughter and herself, quickly proceeded to the scene as directed by PW2 and found the Appellant holding PW1 on the ground. That they managed to apprehend the Appellant herein and handed him over to the police. She told the Court that she knew the Appellant very well prior to the incident as he was a neighbor and, on that night, she had on a Dlight lamp that aided in identifying the Appellant. She did a dock identification of the perpetrator as the Appellant before the Court.
15. On cross-examination, she told the Court that the Appellant intended to rape PW1 and that they found him right in the act.
16. PW6, Paul Chengweyo Matui, testified that he was a clinical officer based in Bungoma County, Kaplamei Health Centre. He told the Court that on 27th August 2023, PW1 visited the facility alleging that a person well known to her had attempted to defile her on 26th August 2023. He observed that PW1 had sustained injuries on the neck and knee joint consistent to a struggle. On examining her he noted that she was stable, had tenderness on the neck with bruises on the left knee and on examining her genitals, PW1 had normal external genitalia and her hymen was still intact. Based on the sustained injuries he concluded that PW1 was a victim of an attempted defilement which left her with soft tissue injuries. He produced in Court PW1’s P3 form which he filled on 27th August 2023 and treatment notes as PEXH 1 and PEXH 2.
17. On cross-examination, he told the Court that he was the one who treated PW1 and that what he filled in the P3 form was truthful and that he never examined the Appellant as he was never availed for any examination.
18. PW7, No. 695663 PC Japheth Mutua, testified that he was formerly stationed at Kapatama Police Station in Mt. Elgon. He recalled on 27trh August 2023, acting on a report of a case of defilement lodged at Kongit Police Post. They proceeded to Kongit wherein they established that the Appellant herein was arrested in relation to a case of defilement. He recorded witness statements and proceeded to the scene which was near Sandera River in Kongit. He established that the incident occurred on 26th August 2023, while PW1 and PW2 were heading home from their aunt’s home when the Appellant accosted, interrogated and derailed them from their route heading home. On investigations he found out that the Appellant used a knife to threaten PW1 and PW2 into following his instructions and another person not known to them joined them. A struggle ensued and PW2 was able to break free from the unknown person and seek help home from her and the parents and sisters quickly acting on PW2’s information, proceeded to the scene where they found the Appellant and PW1 on the ground struggling as he attempted to defile her. In a careful crafted plan, they surrounded the Appellant and accosted him as per PW1, he had a knife. They apprehended the Appellant and later took him to Kongit police station wherein a report was officially lodged and they later proceeded to the Mt. Elgon Sub-County Hospital to seek medical assistance. After investigations he charged the Appellant herein with the offence. He told the Court that at the time of the ordeal the PW1 was 14 years old and he produced in Court a copy of her Birth Certificate as PEXH 1.
19. On cross-examination, he told the Court that there was evidence of a struggle at the scene of crime and that he is the one who conducted the investigations.
20. Upon being put on his defence, the Appellant denied the offence. He told the Court that on the date of the incident he was at work, as usual and after he had spent time with his wife, they went to sleep after concluding their evening chores. At around 9.30 p.m. someone knocked his door and his wife opened assuming it was his friends who had come to check in on him only for his wife to tell him that four strangers were looking for him. He then boarded a motorbike with the strangers who informed him that they were heading to the police post to collect an OB and thereafter he was to take them to a place of their choice. The appellant testified that when they got to the police post, he was arrested and placed in the cell and was not given any reason for his arrest.
21. On cross-examination, he told the Court that on the day of the incident he never left his home and that he does not know PW1.
22. DW2, Edna Khwakamalasi, testified that the Appellant herein is her husband and that on 26th August 2023, she ran errands with her husband and then headed back home. They prepared supper, ate and went to sleep only to be woken up by a knock on the door at 9.30 p.m. and on opening she saw four young men who asked for the Appellant. She heard them speak in Sabaot and since she is not versed in the language she assumed that they wanted him to take them somewhere. The men left with the Appellant and he never returned home. She told the Court that she only learnt of her husband’s arrest from a neighbor.
23. On cross-examination, she told the Court that on that date they were out on errands like doing laundry, slashing and plucking firewood as the Appellant did not work on weekends.
24. The trial Court evaluated the evidence and made a finding view that the Respondent had proved its case beyond reasonable doubt and the court hence convicted the Appellant on the main count. The Appellant was consequently sentenced to serve Ten (10) years imprisonment.
25. Dissatisfied with the conviction and sentence, the Appellant filed a petition of appeal listing seven (5) grounds of appeal:
a. That the Appellant is a first offender and remorseful for the offence committed.
b. That this appeal is not against the sentence but merely requesting for this Honourable Court to consider reducing the same on humanitarian grounds.
c. That the Appellant’s family is very poor and his wife is un-employed. The Appellant is the sole bread winner and the prolonged sentence subjects his family to severe suffering hence the request for the reduction of sentence.
d. That this Court considers reducing the sentence as imposed on humanitarian grounds.
e. That the Appellant wishes to raise more grounds at the hearing of the appeal.
26. The appeal proceeded through written submissions; Both parties filed submissions.
27. As a first appellate Court, I must reconsider and evaluate the evidence in the Court below to arrive at an independent conclusion while bearing in mind that I did not hear or see the witness. In Kiilu & Another V Republic, [2005] 1 KLR 174, the Court of Appeal set out the duties of a first appellate court as follows:-
“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; 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.”
28. Guided by the above principle, I have carefully considered the grounds of appeal, the evidence presented before the trial Court, and the written submissions filed by the parties herein. I have also read the judgment of the trial Court. Having done so, I find that the issue for my determination is whether this Court can reduce the sentence as meted out by the trial Court.
29. The trial Magistrate made the following observations in her Judgement:
a. Section 8(1) of the Sexual Offences Act- a person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
b. Section 8(3) Sexual Offences Act-A person who commits an offence of defilement with child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
c. Section 11 (1) of Sexual Offences Act- A person who commits an offence of indecent act with a child is guilty of the offence of indecent act with a child and is liable upon conviction to imprisonment of not less than ten years.
d. Section 9(1) of the Sexual Offences Act- A person who commits an offence of attempted defilement with a child is liable upon conviction of imprisonment for a term of not less than ten years.
30. Section 9(2) of the Sexual Offence Act clearly provides for a minimum of 10 years’ imprisonment. A trial Court exercising discretion is at liberty to sentence a convicted person to a custodial term way above the 10 years statutory prescribed floor, depending on the aggravating circumstances of the case at hand. In this case the Appellant was sentenced to the minimum ten (10) years’ imprisonment.
31. The Supreme Court in Republic Versus Joshua Gichuki Mwangi & Others Petition NO18 of 2023 (2024) KESC 24 (12 July 2024) declared that the minimum mandatory sentences prescribed by the Sexual Offences Act are lawful as long as the said Act remains in force. The Supreme Court emphasized the need by the three arms of Government to respect and uphold the doctrine of separation of powers; the role of this court is to interpret the law, while parliament makes the law.
32. On the balance I find that the sentence of Ten (10) years imprisonment that was meted upon the Appellant herein is proper and lawful. The same was not excessive or harsh.
33. In view of the foregoing, I find that the appeal on sentence lacks merit and I hereby dismiss it.
34. This file is marked as closed.
It is so ordered.
Delivered, Signed and Dated at Bungoma this 31st day of July 2025.
M.S.Shariff
Judge
In the presence of:
Ms Kibet for Respondent
Appellant
Peter Machoni- Court Assistant