1. The Appellant was convicted of the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on 3/2/2009 at about 8:00pm at Mindiliwo Special School in Keiyo District within Rift Valley Province, the Appellant herein did cause his penis to penetrate the vagina of WK a child aged 15 years.
2. He was also charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on 3/2/2009 at about 8:00pm at Mindiliwo Special School in Keiyo District within Rift Valley Province, the Appellant herein, intentionally and unlawfully caused his penis to come into contact with the vagina of WK, a girl aged 15 years.
3. The record indicates that the Appellant took plea on 11/2/2009 and that he pleaded guilty to the charge and he was on the same date convicted on the main count on his own plea of guilty and sentenced him to 30 years imprisonment.
4. Aggrieved by the conviction and sentence, the Appellant filed this instant Appeal on 20/3/2025, citing the following grounds:
1) That the learned trial Magistrate erred in law and fact by entering a plea of guilty without ascertaining whether the Appellant understood the charge and facts read out.
2) That the learned trial Magistrate erred in law and fact by convicting and sentencing the Appellant without considering that the plea was equivocal on ground that the charges preferred against the Appellant were not read to him in a language that he understands or interpreted to him and that facts read out did not support the charge.
3) That the learned trial Magistrate erred in law and fact by convicting and sentencing the Appellant without considering that the charge of defilement preferred against him by the prosecution was not proved beyond any reasonable doubt for the age of the victim which is a material factor in the matter was never established.
4) That the learned trial Magistrate erred in law and fact by sentencing the Appellant to 30 years imprisonment without ascertaining the actual age of the victim.
5) That the learned trial Magistrate erred in law and fact by sentencing the Appellant to 30 years imprisonment which was harsh and manifestly excessive without any legal basis.
6) That the learned trial Magistrate erred in law and fact in sentencing the Appellant to 30 years imprisonment without considering the Appellant’s mitigation.
Submissions
5. The Appeal was canvassed vide written submissions. The Appellant through the firm of Omwega & Co. Advocates filed his submissions on 20/3/2025 while the Respondent did not file any.
The Appellant’s submissions
6. Counsel for the Appellant submitted that the plea was not unequivocal as required by the law and therefore the conviction and the sentencing meted on him are null and void. He cited the case of Henry O. Edwin v Republic [2015] eKLR, in regard to the plea being unequivocal. Counsel maintained that the plea was not clearly read to the Appellant in the language that he understands as evidenced by the proceedings of the Court at page 3 of the record of appeal.
7. Counsel further submitted that a keen perusal of the aforesaid page, the Court did not indicate the language which the plea was read, and that which the Appellant understood. Further, Counsel urged that the proceedings on issue of interpretation indicates four different languages; English Kiswahili, Keiyo and Marakwet and there is no way the charge and the facts could have been read in all the four languages and also there is no indication of an interpreter who did interpret the charge and facts read to the Appellant.
8. Counsel contended that the Appellant never understood the facts of the charges read to him and therefore not able to correctly respond to them. He cited the case of Bryson Mwanzi Mage v Republic [2017] KEHC 57 (KLR) where the Court relied on the authority in Adan-Vs.Republic (1973) EA, 443, with regard to the procedure of taking plea.
9. Counsel urged that in the instant case, the charge and the fact were not read to the Appellant in a language that he understands. Further, Counsel submitted that the facts as read did not support the charge preferred against the Appellant as the same did not address all the essential ingredients of the offence of defilement contrary to Section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006 which had been preferred against the Appellant, including the age of the victim and penetration.
10. Counsel observed that from the Court records, no proof of age and penetration was produced by the prosecution, essential ingredients which must be proved before a conviction is passed or sentencing. Counsel maintained that it is therefore evident that the requisite procedure was not followed by the Honourable Court and therefore the plea was unequivocal.
11. Regarding the age, Counsel submitted that the Prosecution did not prove the age of the victim to the required standard as by law required and as such, the conviction and sentence meted upon him was not justified under the law. Counsel observed that as per the record of the Court, no proof of age was produced by the prosecution and therefore the sentence meted upon the Appellant had no basis in law. Counsel urged that proof of the victim’s age is a key ingredient in proving an offence of defilement given that the penalty/sentence is based on the complainant's age. Counsel maintained that it was crucial that the age of the victim is proved beyond reasonable doubt for the Court to make a just determination. Counsel cited the case of Kaingu alias Kasomo v Republic [2010] eKLR, in regard to the issue of age.
12. Counsel further observed that the age of a victim of defilement may be proved in various ways as was stated by the Court of Appeal in Mwalongo Chichoro Mwantembe Vs. Republic, Mombasa Criminal Application No. 24 of [2015] eKLR as cited in the case of Edwin Nyambaso Onsongo Vs.Republic (2016) eKLR that:
"... 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."
13. Counsel contended that in this case, the prosecution did not avail any proof of age of the victim but only relied on the P3 form produced in Court as an exhibit indicating that the victim was fifteen (15) years old. Counsel submitted that the P3 form produced was not a sufficient proof of age of the Victim as the same was prepared based on the information given to the doctor by the victim, which is not corroborated by any other document. Counsel maintained that the P3 form was purposely prepared to show the injuries which the Victim sustained and not on the aspect of age assessment. He cited the case of Dominic Mulusia v Republic [2017] eKLR, Nakuru Criminal Appeal No. 247 of 2009, the Court while quashing defilement conviction held that:
"The learned trial Magistrate sought to rely on the P3 form as proof of the age of the child. However, the doctor did not conduct an age assessment on the complainant. The age which is recorded in the P3 form is simply what the child told the doctor. Thus, the P3 form is not proof of age of the child. Therefore, In the absence of concrete proof of the age of the victim a charge of Defilement cannot stand, For this reason, I hereby quash the conviction of the Appellant on the charge of defilement."
14. Counsel submitted that it was incumbent upon the prosecution to avail the age assessment report to prove the age of the Victim or call the victim, her parent or guardian to testify in Court as to the age of the victim and that this was not done by the prosecution and therefore the conviction should be quashed. Counsel further submitted that the prosecution failed to proof the age of the victim beyond reasonable doubt and as required by law in order for the Court to reach a just determination. Counsel urged that the Prosecution having failed to establish the age of the victim, the conviction of the Court and the sentence meted upon the Appellant should therefore be quashed as the same have no legal basis.
15. Regarding the sentence, Counsel submitted that the conviction and the sentence meted upon him was unjustified, null and void as the plea taken was not unequivocal and the age of the victim was not proved beyond reasonable doubt as required by the law as submitted above. Counsel observed that sentencing is a discretion of the trial Court but such discretion must be exercised judiciously and not capriciously. He cited the case of Shadrack Kipchoge Kogo vs. Republic (Eldoret Criminal Appeal No. 253 of 2003) as cited in the case of Johnstone Makau Mwandikwa v Republic [2019] KEHC 2924 (KLR) where the Court of Appeal stated as follows;
"Sentence is essentially an exercise of the trial Court and for this Court to interfere, it must be shown that in passing the sentence, the Court took into account an irrelevant factor or that a wrong principle was applied or short of those the sentence was so harsh and excessive that an error in principle must be inferred"
16. Counsel urged that if the age of the victim could have been proved to be 15 years as alleged. Then the sentence to be meted upon the Appellant would be stipulated under
Section 8(3) of the Sexual Offences Act No. 3 of 2006 which provides that a person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
17. Counsel however noted that by dint of the judgement delivered on 17/05/2022 by Justice G.V. Odunga in the case of Maingi & 5 others v Director of Public Prosecutions & another [2022] KEHC 13118 (KLR). the trial Courts are required to make sentences 'which do not necessarily appear to be confined to the minimum mandatory sentences prescribed by the Act. Counsel observed that the Judge held as follows: -
"To the extent that the Sexual Offences Act prescribe minimum mandatory sentences, with no discretion to the trial Court to determine the appropriate sentence to impose, such sentences fall foul of article 28 of the Constitution. However, the Courts are at liberty to impose sentences prescribed thereunder so long as the same are not deemed to be the mandatory minimum prescribed sentences."
18. Counsel submitted that in the instant case, it appears that the Trial Court in this natter was strictly following the minimum mandatory sentences based on the age of the victim which had not been proved, leading the Court to not give any consideration to the mitigation done by the Appellant. Counsel added that Appellant in the trial Court mitigated that he was a first offender and that he had children whom he was taking care of. Counsel therefore urge this Court to find that the trial Court did not consider the mitigation done by the Appellant thereby sentencing him to 30 years in prison.
19. Counsel further urged the Court, in the event it finds that the age of the victim was proved and therefore the conviction and the sentence meted were justified, to be lenient on the accused person and find that the 16 years already served in prison are sufficient punishment to the Appellant and as such, he should be set at liberty. Counsel urged the Court to consider the authority in the recent case of Dismas Wafula Kilwake v Republic [2019] KECA 5 (KLR) where the Court of Appeal at Kisumu sentenced an accused person to 15 years imprisonment for defiling a minor aged 14 years. The Court therein held as follows:-
"In this case the victim. MA was 14 years old. The Appellant was armed with a panga, which he did not use to injure the victim. He was alone in the commission of the offence and was a first offender. He informed the trial Court that he was responsible for supporting 10 people including his wife, father and two of his brother's children. The trial Court noted that he was remorseful, but felt constrained to impose upon him the sentence prescribed by the Act, which, like the first appellate Court, it found to be mandatory. The defilement must have been a horrifying experience for the victim. In these circumstances, a sentence of imprisonment for 10 years would be adequate. Accordingly, we allow this appeal as regards sentence alone. We set aside the sentence of 20 years’ imprisonment and substitute therefor a sentence of fifteen (15) years imprisonment with effect from the date of sentence by the trial Court. It is so ordered."
20. Based on the above recent findings of the Courts, Counsel submitted that it is evidently clear that the Courts have deviated from the mandatory minimum sentences and sentenced accused persons to even 10 years where the offence involves defilement of minors aged 14 years. Counsel pointed out that Appellant herein having served his sentence for almost 16 years now, he urged the Court to find that the punishment is sufficient and proportional to the offence and as such, the Appellant should be set at liberty.
Determination
21. This being a first appeal, the duty of the Court is as was set out by the Court of Appeal in Okeno v Republic [1972] EA 32 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 and the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusion. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s finding and conclusion; 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.”
22. The manner of recording of a plea is provided for in Section 207(1) and (2) of the Criminal Procedure Code provides as hereunder:
(1) The substance of the charge shall be stated to the accused person by the Court, and he shall be asked whether he pleads not guilty, guilty or guilty subject to a plea agreement;
(2) If the accused person admits the truth of the charge otherwise than by a plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the Court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary:
Provided that after conviction and before passing sentence or making any order the Court may permit or require the complainant to outline to the Court the facts upon which the charge is founded.
23. Section 348 of the Criminal Procedure Code provides as follows on whether an appeal can lie in cases where an accused has pleaded guilty to a charge;
No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence
24. For a plea of guilty to be considered to be unequivocal, the procedure that was laid out by the Court of Appeal in Adan v R [1973] EA, 443 must strictly be adhered to. The same is as follows:
“When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The Magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential elements, the Magistrate should record what the accused has said, as nearly as possible in his own word, and then formally enter a plea of guilt. The Magistrate should next ask the prosecutor to state the facts of the alleged offence and when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused does not agree with the statements of facts or asserts additional facts which, if true might raise a question as to his guilt, the Magistrate should record a change of plea to “not guilty” and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the Magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of facts and the accused's reply must, of course, be recorded.”
25. In the present case, the languages that were available for the court to use are laid out and the court then states that the charge was is read out to the accused in a language he understands. He did plead to both the main and the alternative charge, the facts were read out and he pleaded to them as well and upon conviction he gave his mitigation which the court considered and then sentenced him. Having examined the record of proceedings before the trial Court as herein summarised, I find that the same were taken in conformity with and as per the provisions of Section 207 of the Criminal Procedure Code and in line with the procedure of plea taking as set out set out in the case of Adan vs. Republic.
26. The issue of the age of the victim that the Counsel for the appellant has submitted upon at great length in my well-considered opinion comprise the facts of the case which were read out to the accused. The fact of the age of the accused being 15 years old were comprised of these facts and the same together with the facts of the case it its totality were read out to the Appellant and upon being asked whether those facts were true or not true he answered that they were true. The court then proceeded to convict the accused on his own plea of guilty. This fact of the complainant’s age cannot therefore comprise the basis of this appeal which by dint of the provisions of Section 348 of the CPC can only be on the sentence. In this regard, I find this submission to be misconceived and without merit.
27. On the issue of the sentence, the provisions of Section 348 herein reproduced is relevant. A sentence where a plea of guilty can only be can only be appealed against as to its extent or legality. Further sentencing is an exercise of discretion by the trial Court. Such discretion should ordinarily not be interfered with unless it is shown that the trial Court acted upon wrong principles or overlooked some material factors or took into account irrelevant factors or short of this, the sentence is illegal or is so inordinately excessive or patently lenient as to be an error of principle (See Shadrack Kipkoech Kogo vs R., and Wilson Waitegei vs Republic [2021] eKLR). (supra).
28. Section 8(1) of the Sexual Offences Act under which the Appellant was charged provides as follows;
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
29. Section 8 Sub Section (3) of the same Act under which he was sentenced provides as follows;
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
30. In the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment). In overturning the decision of the Court of Appeal which had applied the Muruatetu reasoning in setting aside the mandatory minimum sentence of 20 years’ imprisonment imposed on the Appellant, the Supreme Court stated as follows:
In any case, the sentence imposed by the trial Court against the Respondent and affirmed by the first appellate Court was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid.
31. The court notes that the Learned Trial Magistrate sentenced the Appellant to a term of 30 years’ imprisonment out of a minimum mandatory threshold of 20 years’ imprisonment. The said sentence is not illegal per se, in the sense that the minimum mandatory threshold of 20 years can be breached going upwards but not coming downwards in light of the above decision of the Supreme Court. In this regard then, the court can interfere with the sentence if it is of the view that the same was excessive.
32. I have considered the fact that the Appellant pleaded guilty at plea and therefore saved the court all the much needed time energy and effort that it could have expended in the trial if the matter had gone to full hearing. For this reason alone, it is my considered opinion that the Appellant merits the court looking upon his appeal with an eye of equity. In these circumstances, I am of the finding that the Applicant’s Application seeking a review of the sentence has merit. The same is accordingly allowed and his sentence is reviewed downwards from a term of 30 years’ imprisonment to a term of 20 years’ imprisonment. Right of Appeal 14 days
Read Dated and Signed at ELDORET on 9th July 2025.
2. He was also charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on 3/2/2009 at about 8:00pm at Mindiliwo Special School in Keiyo District within Rift Valley Province, the Appellant herein, intentionally and unlawfully caused his penis to come into contact with the vagina of WK, a girl aged 15 years.
3. The record indicates that the Appellant took plea on 11/2/2009 and that he pleaded guilty to the charge and he was on the same date convicted on the main count on his own plea of guilty and sentenced him to 30 years imprisonment.
4. Aggrieved by the conviction and sentence, the Appellant filed this instant Appeal on 20/3/2025, citing the following grounds:
1) That the learned trial Magistrate erred in law and fact by entering a plea of guilty without ascertaining whether the Appellant understood the charge and facts read out.
2) That the learned trial Magistrate erred in law and fact by convicting and sentencing the Appellant without considering that the plea was equivocal on ground that the charges preferred against the Appellant were not read to him in a language that he understands or interpreted to him and that facts read out did not support the charge.
3) That the learned trial Magistrate erred in law and fact by convicting and sentencing the Appellant without considering that the charge of defilement preferred against him by the prosecution was not proved beyond any reasonable doubt for the age of the victim which is a material factor in the matter was never established.
4) That the learned trial Magistrate erred in law and fact by sentencing the Appellant to 30 years imprisonment without ascertaining the actual age of the victim.
5) That the learned trial Magistrate erred in law and fact by sentencing the Appellant to 30 years imprisonment which was harsh and manifestly excessive without any legal basis.
6) That the learned trial Magistrate erred in law and fact in sentencing the Appellant to 30 years imprisonment without considering the Appellant’s mitigation.
Submissions
5. The Appeal was canvassed vide written submissions. The Appellant through the firm of Omwega & Co. Advocates filed his submissions on 20/3/2025 while the Respondent did not file any.
The Appellant’s submissions
6. Counsel for the Appellant submitted that the plea was not unequivocal as required by the law and therefore the conviction and the sentencing meted on him are null and void. He cited the case of Henry O. Edwin v Republic [2015] eKLR, in regard to the plea being unequivocal. Counsel maintained that the plea was not clearly read to the Appellant in the language that he understands as evidenced by the proceedings of the Court at page 3 of the record of appeal.
7. Counsel further submitted that a keen perusal of the aforesaid page, the Court did not indicate the language which the plea was read, and that which the Appellant understood. Further, Counsel urged that the proceedings on issue of interpretation indicates four different languages; English Kiswahili, Keiyo and Marakwet and there is no way the charge and the facts could have been read in all the four languages and also there is no indication of an interpreter who did interpret the charge and facts read to the Appellant.
8. Counsel contended that the Appellant never understood the facts of the charges read to him and therefore not able to correctly respond to them. He cited the case of Bryson Mwanzi Mage v Republic [2017] KEHC 57 (KLR) where the Court relied on the authority in Adan-Vs.Republic (1973) EA, 443, with regard to the procedure of taking plea.
9. Counsel urged that in the instant case, the charge and the fact were not read to the Appellant in a language that he understands. Further, Counsel submitted that the facts as read did not support the charge preferred against the Appellant as the same did not address all the essential ingredients of the offence of defilement contrary to Section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006 which had been preferred against the Appellant, including the age of the victim and penetration.
10. Counsel observed that from the Court records, no proof of age and penetration was produced by the prosecution, essential ingredients which must be proved before a conviction is passed or sentencing. Counsel maintained that it is therefore evident that the requisite procedure was not followed by the Honourable Court and therefore the plea was unequivocal.
11. Regarding the age, Counsel submitted that the Prosecution did not prove the age of the victim to the required standard as by law required and as such, the conviction and sentence meted upon him was not justified under the law. Counsel observed that as per the record of the Court, no proof of age was produced by the prosecution and therefore the sentence meted upon the Appellant had no basis in law. Counsel urged that proof of the victim’s age is a key ingredient in proving an offence of defilement given that the penalty/sentence is based on the complainant's age. Counsel maintained that it was crucial that the age of the victim is proved beyond reasonable doubt for the Court to make a just determination. Counsel cited the case of Kaingu alias Kasomo v Republic [2010] eKLR, in regard to the issue of age.
12. Counsel further observed that the age of a victim of defilement may be proved in various ways as was stated by the Court of Appeal in Mwalongo Chichoro Mwantembe Vs. Republic, Mombasa Criminal Application No. 24 of [2015] eKLR as cited in the case of Edwin Nyambaso Onsongo Vs.Republic (2016) eKLR that:
"... 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."
13. Counsel contended that in this case, the prosecution did not avail any proof of age of the victim but only relied on the P3 form produced in Court as an exhibit indicating that the victim was fifteen (15) years old. Counsel submitted that the P3 form produced was not a sufficient proof of age of the Victim as the same was prepared based on the information given to the doctor by the victim, which is not corroborated by any other document. Counsel maintained that the P3 form was purposely prepared to show the injuries which the Victim sustained and not on the aspect of age assessment. He cited the case of Dominic Mulusia v Republic [2017] eKLR, Nakuru Criminal Appeal No. 247 of 2009, the Court while quashing defilement conviction held that:
"The learned trial Magistrate sought to rely on the P3 form as proof of the age of the child. However, the doctor did not conduct an age assessment on the complainant. The age which is recorded in the P3 form is simply what the child told the doctor. Thus, the P3 form is not proof of age of the child. Therefore, In the absence of concrete proof of the age of the victim a charge of Defilement cannot stand, For this reason, I hereby quash the conviction of the Appellant on the charge of defilement."
14. Counsel submitted that it was incumbent upon the prosecution to avail the age assessment report to prove the age of the Victim or call the victim, her parent or guardian to testify in Court as to the age of the victim and that this was not done by the prosecution and therefore the conviction should be quashed. Counsel further submitted that the prosecution failed to proof the age of the victim beyond reasonable doubt and as required by law in order for the Court to reach a just determination. Counsel urged that the Prosecution having failed to establish the age of the victim, the conviction of the Court and the sentence meted upon the Appellant should therefore be quashed as the same have no legal basis.
15. Regarding the sentence, Counsel submitted that the conviction and the sentence meted upon him was unjustified, null and void as the plea taken was not unequivocal and the age of the victim was not proved beyond reasonable doubt as required by the law as submitted above. Counsel observed that sentencing is a discretion of the trial Court but such discretion must be exercised judiciously and not capriciously. He cited the case of Shadrack Kipchoge Kogo vs. Republic (Eldoret Criminal Appeal No. 253 of 2003) as cited in the case of Johnstone Makau Mwandikwa v Republic [2019] KEHC 2924 (KLR) where the Court of Appeal stated as follows;
"Sentence is essentially an exercise of the trial Court and for this Court to interfere, it must be shown that in passing the sentence, the Court took into account an irrelevant factor or that a wrong principle was applied or short of those the sentence was so harsh and excessive that an error in principle must be inferred"
16. Counsel urged that if the age of the victim could have been proved to be 15 years as alleged. Then the sentence to be meted upon the Appellant would be stipulated under
Section 8(3) of the Sexual Offences Act No. 3 of 2006 which provides that a person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
17. Counsel however noted that by dint of the judgement delivered on 17/05/2022 by Justice G.V. Odunga in the case of Maingi & 5 others v Director of Public Prosecutions & another [2022] KEHC 13118 (KLR). the trial Courts are required to make sentences 'which do not necessarily appear to be confined to the minimum mandatory sentences prescribed by the Act. Counsel observed that the Judge held as follows: -
"To the extent that the Sexual Offences Act prescribe minimum mandatory sentences, with no discretion to the trial Court to determine the appropriate sentence to impose, such sentences fall foul of article 28 of the Constitution. However, the Courts are at liberty to impose sentences prescribed thereunder so long as the same are not deemed to be the mandatory minimum prescribed sentences."
18. Counsel submitted that in the instant case, it appears that the Trial Court in this natter was strictly following the minimum mandatory sentences based on the age of the victim which had not been proved, leading the Court to not give any consideration to the mitigation done by the Appellant. Counsel added that Appellant in the trial Court mitigated that he was a first offender and that he had children whom he was taking care of. Counsel therefore urge this Court to find that the trial Court did not consider the mitigation done by the Appellant thereby sentencing him to 30 years in prison.
19. Counsel further urged the Court, in the event it finds that the age of the victim was proved and therefore the conviction and the sentence meted were justified, to be lenient on the accused person and find that the 16 years already served in prison are sufficient punishment to the Appellant and as such, he should be set at liberty. Counsel urged the Court to consider the authority in the recent case of Dismas Wafula Kilwake v Republic [2019] KECA 5 (KLR) where the Court of Appeal at Kisumu sentenced an accused person to 15 years imprisonment for defiling a minor aged 14 years. The Court therein held as follows:-
"In this case the victim. MA was 14 years old. The Appellant was armed with a panga, which he did not use to injure the victim. He was alone in the commission of the offence and was a first offender. He informed the trial Court that he was responsible for supporting 10 people including his wife, father and two of his brother's children. The trial Court noted that he was remorseful, but felt constrained to impose upon him the sentence prescribed by the Act, which, like the first appellate Court, it found to be mandatory. The defilement must have been a horrifying experience for the victim. In these circumstances, a sentence of imprisonment for 10 years would be adequate. Accordingly, we allow this appeal as regards sentence alone. We set aside the sentence of 20 years’ imprisonment and substitute therefor a sentence of fifteen (15) years imprisonment with effect from the date of sentence by the trial Court. It is so ordered."
20. Based on the above recent findings of the Courts, Counsel submitted that it is evidently clear that the Courts have deviated from the mandatory minimum sentences and sentenced accused persons to even 10 years where the offence involves defilement of minors aged 14 years. Counsel pointed out that Appellant herein having served his sentence for almost 16 years now, he urged the Court to find that the punishment is sufficient and proportional to the offence and as such, the Appellant should be set at liberty.
Determination
21. This being a first appeal, the duty of the Court is as was set out by the Court of Appeal in Okeno v Republic [1972] EA 32 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 and the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusion. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s finding and conclusion; 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.”
22. The manner of recording of a plea is provided for in Section 207(1) and (2) of the Criminal Procedure Code provides as hereunder:
(1) The substance of the charge shall be stated to the accused person by the Court, and he shall be asked whether he pleads not guilty, guilty or guilty subject to a plea agreement;
(2) If the accused person admits the truth of the charge otherwise than by a plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the Court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary:
Provided that after conviction and before passing sentence or making any order the Court may permit or require the complainant to outline to the Court the facts upon which the charge is founded.
23. Section 348 of the Criminal Procedure Code provides as follows on whether an appeal can lie in cases where an accused has pleaded guilty to a charge;
No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence
24. For a plea of guilty to be considered to be unequivocal, the procedure that was laid out by the Court of Appeal in Adan v R [1973] EA, 443 must strictly be adhered to. The same is as follows:
“When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The Magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential elements, the Magistrate should record what the accused has said, as nearly as possible in his own word, and then formally enter a plea of guilt. The Magistrate should next ask the prosecutor to state the facts of the alleged offence and when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused does not agree with the statements of facts or asserts additional facts which, if true might raise a question as to his guilt, the Magistrate should record a change of plea to “not guilty” and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the Magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of facts and the accused's reply must, of course, be recorded.”
25. In the present case, the languages that were available for the court to use are laid out and the court then states that the charge was is read out to the accused in a language he understands. He did plead to both the main and the alternative charge, the facts were read out and he pleaded to them as well and upon conviction he gave his mitigation which the court considered and then sentenced him. Having examined the record of proceedings before the trial Court as herein summarised, I find that the same were taken in conformity with and as per the provisions of Section 207 of the Criminal Procedure Code and in line with the procedure of plea taking as set out set out in the case of Adan vs. Republic.
26. The issue of the age of the victim that the Counsel for the appellant has submitted upon at great length in my well-considered opinion comprise the facts of the case which were read out to the accused. The fact of the age of the accused being 15 years old were comprised of these facts and the same together with the facts of the case it its totality were read out to the Appellant and upon being asked whether those facts were true or not true he answered that they were true. The court then proceeded to convict the accused on his own plea of guilty. This fact of the complainant’s age cannot therefore comprise the basis of this appeal which by dint of the provisions of Section 348 of the CPC can only be on the sentence. In this regard, I find this submission to be misconceived and without merit.
27. On the issue of the sentence, the provisions of Section 348 herein reproduced is relevant. A sentence where a plea of guilty can only be can only be appealed against as to its extent or legality. Further sentencing is an exercise of discretion by the trial Court. Such discretion should ordinarily not be interfered with unless it is shown that the trial Court acted upon wrong principles or overlooked some material factors or took into account irrelevant factors or short of this, the sentence is illegal or is so inordinately excessive or patently lenient as to be an error of principle (See Shadrack Kipkoech Kogo vs R., and Wilson Waitegei vs Republic [2021] eKLR). (supra).
28. Section 8(1) of the Sexual Offences Act under which the Appellant was charged provides as follows;
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
29. Section 8 Sub Section (3) of the same Act under which he was sentenced provides as follows;
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
30. In the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment). In overturning the decision of the Court of Appeal which had applied the Muruatetu reasoning in setting aside the mandatory minimum sentence of 20 years’ imprisonment imposed on the Appellant, the Supreme Court stated as follows:
In any case, the sentence imposed by the trial Court against the Respondent and affirmed by the first appellate Court was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid.
31. The court notes that the Learned Trial Magistrate sentenced the Appellant to a term of 30 years’ imprisonment out of a minimum mandatory threshold of 20 years’ imprisonment. The said sentence is not illegal per se, in the sense that the minimum mandatory threshold of 20 years can be breached going upwards but not coming downwards in light of the above decision of the Supreme Court. In this regard then, the court can interfere with the sentence if it is of the view that the same was excessive.
32. I have considered the fact that the Appellant pleaded guilty at plea and therefore saved the court all the much needed time energy and effort that it could have expended in the trial if the matter had gone to full hearing. For this reason alone, it is my considered opinion that the Appellant merits the court looking upon his appeal with an eye of equity. In these circumstances, I am of the finding that the Applicant’s Application seeking a review of the sentence has merit. The same is accordingly allowed and his sentence is reviewed downwards from a term of 30 years’ imprisonment to a term of 20 years’ imprisonment. Right of Appeal 14 days
Read Dated and Signed at ELDORET on 9th July 2025.