(Being an appeal from the original matter of Criminal Case SO.E010 OF 2023 at Tawa SPM’S Court Judgment delivered on 4 th November 2025 Before Hon.Stephen Jalang’o -SPM)
A. INTRODUCTION:
1. The Appellant herein had charged with the offence of defilement contrary to Section 8(1) as read with Section 8 (4) of the Sexual offences Act No. 3 of 2006.
2. The particulars of the offence are that on 11 th August,2023 at Muia Village,Waia Location in Mbooni East Sub-County within Makueni County, he intentionally and unlawfully caused his genital organ to penetrate into the genital of SNP, a child aged fourteen (14) years.
3. The substance of the charge and every element thereof were stated to the accused, which he denied the same and the matter proceeded to full trial.
4. The Appellant having entered a plea of not guilty; the matter proceeded to full hearing during which the prosecution called four (4) witnesses in support of its case. Upon being placed on his defence, the Appellant gave a sworn statement and did not call any witness. In a Judgment delivered on 4 th November 2025, the learned trial Magistrate found the Appellant guilty of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and proceeded to convict and sentence him to twenty (20) years’ imprisonment.
5. Being dissatisfied with the conviction and sentence imposed by the trial court, the Appellant has preferred the present appeal and advances, inter alia, the following grounds:
i. THAT the learned trial Magistrate erred in law and in fact by failing to find that the whole case was marred with material contradictions and inconstancies which went to the root of the charges ;
ii. THAT the learned trial Magistrate erred in law and in fact in failing to notice that essential ingredients/elects of the offence as charged were not proved beyond reasonable doubt;
iii. THAT the learned trial Magistrate erred in law and in fact by failing to accord the accused person with fair trial pursuant to Article 25 (c),50(2)(g)(h) of the Constitution of Kenya;
iv. THAT the Hon.Court imposed a sentence of 20n years’ imprisonment which is manifestly harsh and excessive;
B. EVIDENCE IN BRIEF
i. Prosecution’s Case
6. PW4 was PMN . She was born in April 2012 and was 14 years old at the time the offence was committed. She did not know the accused before the incident.
7. In her testimony, she told the court that on 11 th August,2023 she has gone to fetch water and that the accused pulled her and put her to the ground, removed her short ,pulled the inner wear, blocked her mouth and thereafter had sex with her.
8. She saw sperms on her short and went and informed er grandmother PW3 of what transpired and that is when they went and reported the matter to the police
9. PW3 was Marrieta Kavindu Kakeo . She is the grandmother of PW4 . She told the Court that the complaint was aged 14 years and that on 11 th August,2023 she went to work and left the complainant and home and at around 11.00 am the complainant web to her work while crying informing her that the accused person wrested her to the ground, removed her clothes and slept on top of her. She stated that she reported the matter to the police and took the minor for medical examination and treatment. She identified the accused as her neighbor.
10. PW 2 was police constable Evelyne Njoki , the investigating officer in the case. His testimony was that on 11 th August,2023 , a report of defilement was by the Complainant. The Complainant alleged that she had been defiled by the Appellant. PW4 referred the complainant was accompanied by the grandmother, where she was examined. The examination concluded that she had been defiled She took the statements of the Child and the grandmother. She later arrested the accused and brought him to court.
11. PW1 was Angeline Ndunge, a clinical Officer based at Kisau Sub-County Hospital. She is the one was examined PW4. Upon examination she confirmed that hymen was broken and bruises in the vagina.She also noted a foul smell coming from the vagina . PW1 produced PRC form, P3 form and medical notes.
ii. Defence Case
12. The appellant did not call any witnesses. The Appellant gave sworn evidence and he denied committing the offence and that he is a casual worker and did not commit the offence.
C. LEGAL ANALYSIS
13. The duty of this Court on a first appeal is well settled. In Okeno v Republic [1972] EA 32 , it was held that the Court is under a duty to subject the entire evidence on record to a fresh and exhaustive re-evaluation in order to arrive at its own independent conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify.
14. The same position was reiterated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 , where the Court held that an appellate court is not bound by the findings of fact of the trial court. However, in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect.
ISSUES FOR DETERMINATION
15. The principal issues for determination in this appeal are;
(i) Whether the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt.
(ii) Whether the conviction and sentence by the trial court were safe and justified in the circumstances of the case.
16. This is a case of defilement. There are three ingredients that the prosecution must proof: these are; age of the victim, penetration; and the identity of the perpetrator.
(i) Whether the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt.
17. The offence of defilement is anchored on three key ingredients, namely: the age of the complainant (who must be a minor) , proof of penetration, and positive identification of the perpetrator . These elements are codified under Section 8(1) of the Sexual Offences Act No. 3 of 2006, and each must be proved beyond reasonable doubt for a conviction to stand. (See George Opondo Olunga v Republic [2016] eKLR.)
18. Section 8(1) and (3) of the Sexual Offences Act provides that:
(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2)…
(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.
a. Age of the Complainant
19. Before considering the remaining ingredients of the offence, this Court finds it necessary to briefly address the issue of the complainant’s age, notwithstanding that the evidence on this aspect was uniform and remained uncontroverted throughout the trial. The evidence relating to age was neither challenged nor rebutted by the defence.
20. The significance of proving age in sexual offence cases cannot be overstated, as the age of the victim not only determines whether the complainant falls within the statutory definition of a child but also directly informs the applicable sentencing framework under Section 8 of the Sexual Offences Act.
21. The Court of Appeal in Edwin Nyambogo Onsongo v Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... 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 must be credible and reliable.” (emphasis added) .
22. Accordingly, this Court is satisfied that the prosecution proved beyond any doubt that the complainant was a child aged 14 years at the time of the alleged offence. The ingredient of age was therefore firmly established.
b. Proof of Penetration
23. Penetration is a fundamental element of the offence of defilement and must be established through cogent and credible evidence. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into the genital organs of another person.
24. In sexual offence cases, proof of penetration may be established through the testimony of the victim and, where available, corroborative medical or circumstantial evidence. Indeed, Section 124 of the Evidence Act permits a court to found a conviction on the sole evidence of the complainant in a sexual offence case, provided that the court records its reasons for believing that the complainant is truthful.
25. In the case of Bassita v Uganda S.C. Criminal Appeal No. 35 of 1995 , the Supreme Court of Uganda had the following to say in respect of proving penetration: -
The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.
26. The evidence on penetration is overwhelming. The Complainant told the court that the accused pulled her to the ground, removed her short and inner wear, blocked her mouth and had sex with her. The Appellant has not adduced any evidence to rebut this forensic evidence.
c. Identification of the Perpetrator
27. With the first two elements established, the Court will next address itself to the question of identification. Simply put, the question is: was it the Appellant that committed the offence?
28. It is true that our case law calls for caution in receiving identification evidence because of the grave possibility of a miscarriage of justice occasioned by misidentification. As was stated in Roria v R [1967] EA 583 , “ a conviction resting entirely on identity invariably causes a degree of uneasiness.” Similarly, in Kiarie v Republic , the Court of Appeal emphasised that “ it is possible for a witness to be honest but mistaken and for a number of witnesses to all be mistaken.”
29. To aid in the exercise of this “circumspection” our courts have adopted the guidelines for receiving and considering identification evidence set out in the famous English case of Regina v Turnbull [1976] 3WLR 445 . They are nine in number and they instruct a judicial officer who is considering evidence on identification to ask the following questions:
i. How long did the witnesses have the accused under their observation?
ii. What was the distance between the witnesses and the accused person?
iii. What was the lighting situation?
iv. Was the observation impeded in any way, as for example, by passing traffic or press of the people?
v. Had the witnesses ever seen the accused person?
vi. If the witnesses knew the accused prior to the current transaction, how often?
vii. If the witnesses had seen the accused only occasionally prior to the current transaction, did the witness have any specific reason for remembering the accused?
viii. How long elapsed between the original observation and the subsequent identification to the police?
ix. Was there any material discrepancy between the description of the accused given to the Police by the witnesses when first seen by them and his actual appearance?
30. The Appellant was not known to PW4.
31. The appellant has alleged that there a monumental inconsistences and contradictions in the prosecution’s case. This ground of appeal is misplaced. I find the prosecution case to be consistent and coherent with no material contradictions.
32. In the premises, the Court finds that the prosecution proved the ingredient of identification beyond reasonable doubt.
(ii) Whether the conviction and sentence by the trial court were safe and justified in the circumstances of the case.
33. Having carefully re-evaluated the entire evidence on record and having found that the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt, this Court is satisfied that the conviction entered by the learned trial Magistrate was safe and firmly grounded on the evidence. Consequently, the appeal against conviction is devoid of merit and is hereby dismissed.
34. This Court now turns to consider the propriety and legality of the sentence imposed by the trial court. The question for determination is whether the sentence meted out was consistent with the applicable provisions of the law and whether there exists any basis upon which this Court should interfere with the same.
35. It is trite law that sentencing is the discretion of the trial court. In Shadrack Kipkoech Kogo v R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus as regards interference with sentence:
Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka v R. (1989 KLR 306)
36. Also, Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR restated thus:
It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist. (Emphasis added)
37. Before considering whether there is any basis for interfering with the sentence imposed by the trial court, it is important to restate the objectives of sentencing in criminal matters. Sentencing serves multiple purposes, including punishment, deterrence, rehabilitation, denunciation of unlawful conduct, and the protection of society from offenders.
38. In the case of Republic v Elijah Munee Ndundu and another [1978] eKLR the court while considering the purpose of penalties in criminal cases observed:
Reformation is a fair enough consideration but not the main object of penalties in criminal cases. One of the aims of punishment is to deter the individual offender and to deter others who may be tempted to commit similar offences (see Samuel v The Republic [1968] EA 1). It is an important function of any State to protect its citizens. This involves protection of society from crime and criminals…In considering whether to impose custodial sentences, and particularly long terms of imprisonment, one consideration that plays an important role is the need to remove the offender from society. However, as stated by Lord Denning before the Royal Commission on Capital Punishment, the punishment for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them.
39. The Appellant was convicted under Section 8(1) as read with Section 8(3) of the Sexual Offences Act and committed to serve custodial sentence of twenty (20) years’ imprisonment.
40. In the circumstances, this Court finds that the sentence imposed by the trial court was lawful and properly anchored in statute, having fallen within the mandatory minimum prescribed under Section 8(4) of the Sexual Offences Act. Accordingly, there exists no legal or factual basis upon which this Court can interfere with the sentence meted out by the trial court, and the same is hereby upheld.
D. DISPOSITION
41. In the upshot, this Court finds no merit in the Appellants’ appeal. The appeal is hereby dismissed in its entirety. The conviction entered by the trial court is upheld as safe, and the sentence imposed is affirmed as lawful.
42. In computing the effective term of imprisonment, the court shall take into account and accord due credit for the period the convict spent in custody during trial.
43. It is so ordered.
Dated and delivered at Malindi this 28 th day of July 2026
C.AKAIGWA
JUDGE
Page 2 of 2
A. INTRODUCTION:
1. The Appellant herein had charged with the offence of defilement contrary to Section 8(1) as read with Section 8 (4) of the Sexual offences Act No. 3 of 2006.
2. The particulars of the offence are that on 11 th August,2023 at Muia Village,Waia Location in Mbooni East Sub-County within Makueni County, he intentionally and unlawfully caused his genital organ to penetrate into the genital of SNP, a child aged fourteen (14) years.
3. The substance of the charge and every element thereof were stated to the accused, which he denied the same and the matter proceeded to full trial.
4. The Appellant having entered a plea of not guilty; the matter proceeded to full hearing during which the prosecution called four (4) witnesses in support of its case. Upon being placed on his defence, the Appellant gave a sworn statement and did not call any witness. In a Judgment delivered on 4 th November 2025, the learned trial Magistrate found the Appellant guilty of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and proceeded to convict and sentence him to twenty (20) years’ imprisonment.
5. Being dissatisfied with the conviction and sentence imposed by the trial court, the Appellant has preferred the present appeal and advances, inter alia, the following grounds:
i. THAT the learned trial Magistrate erred in law and in fact by failing to find that the whole case was marred with material contradictions and inconstancies which went to the root of the charges ;
ii. THAT the learned trial Magistrate erred in law and in fact in failing to notice that essential ingredients/elects of the offence as charged were not proved beyond reasonable doubt;
iii. THAT the learned trial Magistrate erred in law and in fact by failing to accord the accused person with fair trial pursuant to Article 25 (c),50(2)(g)(h) of the Constitution of Kenya;
iv. THAT the Hon.Court imposed a sentence of 20n years’ imprisonment which is manifestly harsh and excessive;
B. EVIDENCE IN BRIEF
i. Prosecution’s Case
6. PW4 was PMN . She was born in April 2012 and was 14 years old at the time the offence was committed. She did not know the accused before the incident.
7. In her testimony, she told the court that on 11 th August,2023 she has gone to fetch water and that the accused pulled her and put her to the ground, removed her short ,pulled the inner wear, blocked her mouth and thereafter had sex with her.
8. She saw sperms on her short and went and informed er grandmother PW3 of what transpired and that is when they went and reported the matter to the police
9. PW3 was Marrieta Kavindu Kakeo . She is the grandmother of PW4 . She told the Court that the complaint was aged 14 years and that on 11 th August,2023 she went to work and left the complainant and home and at around 11.00 am the complainant web to her work while crying informing her that the accused person wrested her to the ground, removed her clothes and slept on top of her. She stated that she reported the matter to the police and took the minor for medical examination and treatment. She identified the accused as her neighbor.
10. PW 2 was police constable Evelyne Njoki , the investigating officer in the case. His testimony was that on 11 th August,2023 , a report of defilement was by the Complainant. The Complainant alleged that she had been defiled by the Appellant. PW4 referred the complainant was accompanied by the grandmother, where she was examined. The examination concluded that she had been defiled She took the statements of the Child and the grandmother. She later arrested the accused and brought him to court.
11. PW1 was Angeline Ndunge, a clinical Officer based at Kisau Sub-County Hospital. She is the one was examined PW4. Upon examination she confirmed that hymen was broken and bruises in the vagina.She also noted a foul smell coming from the vagina . PW1 produced PRC form, P3 form and medical notes.
ii. Defence Case
12. The appellant did not call any witnesses. The Appellant gave sworn evidence and he denied committing the offence and that he is a casual worker and did not commit the offence.
C. LEGAL ANALYSIS
13. The duty of this Court on a first appeal is well settled. In Okeno v Republic [1972] EA 32 , it was held that the Court is under a duty to subject the entire evidence on record to a fresh and exhaustive re-evaluation in order to arrive at its own independent conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify.
14. The same position was reiterated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 , where the Court held that an appellate court is not bound by the findings of fact of the trial court. However, in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect.
ISSUES FOR DETERMINATION
15. The principal issues for determination in this appeal are;
(i) Whether the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt.
(ii) Whether the conviction and sentence by the trial court were safe and justified in the circumstances of the case.
16. This is a case of defilement. There are three ingredients that the prosecution must proof: these are; age of the victim, penetration; and the identity of the perpetrator.
(i) Whether the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt.
17. The offence of defilement is anchored on three key ingredients, namely: the age of the complainant (who must be a minor) , proof of penetration, and positive identification of the perpetrator . These elements are codified under Section 8(1) of the Sexual Offences Act No. 3 of 2006, and each must be proved beyond reasonable doubt for a conviction to stand. (See George Opondo Olunga v Republic [2016] eKLR.)
18. Section 8(1) and (3) of the Sexual Offences Act provides that:
(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2)…
(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.
a. Age of the Complainant
19. Before considering the remaining ingredients of the offence, this Court finds it necessary to briefly address the issue of the complainant’s age, notwithstanding that the evidence on this aspect was uniform and remained uncontroverted throughout the trial. The evidence relating to age was neither challenged nor rebutted by the defence.
20. The significance of proving age in sexual offence cases cannot be overstated, as the age of the victim not only determines whether the complainant falls within the statutory definition of a child but also directly informs the applicable sentencing framework under Section 8 of the Sexual Offences Act.
21. The Court of Appeal in Edwin Nyambogo Onsongo v Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... 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 must be credible and reliable.” (emphasis added) .
22. Accordingly, this Court is satisfied that the prosecution proved beyond any doubt that the complainant was a child aged 14 years at the time of the alleged offence. The ingredient of age was therefore firmly established.
b. Proof of Penetration
23. Penetration is a fundamental element of the offence of defilement and must be established through cogent and credible evidence. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into the genital organs of another person.
24. In sexual offence cases, proof of penetration may be established through the testimony of the victim and, where available, corroborative medical or circumstantial evidence. Indeed, Section 124 of the Evidence Act permits a court to found a conviction on the sole evidence of the complainant in a sexual offence case, provided that the court records its reasons for believing that the complainant is truthful.
25. In the case of Bassita v Uganda S.C. Criminal Appeal No. 35 of 1995 , the Supreme Court of Uganda had the following to say in respect of proving penetration: -
The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.
26. The evidence on penetration is overwhelming. The Complainant told the court that the accused pulled her to the ground, removed her short and inner wear, blocked her mouth and had sex with her. The Appellant has not adduced any evidence to rebut this forensic evidence.
c. Identification of the Perpetrator
27. With the first two elements established, the Court will next address itself to the question of identification. Simply put, the question is: was it the Appellant that committed the offence?
28. It is true that our case law calls for caution in receiving identification evidence because of the grave possibility of a miscarriage of justice occasioned by misidentification. As was stated in Roria v R [1967] EA 583 , “ a conviction resting entirely on identity invariably causes a degree of uneasiness.” Similarly, in Kiarie v Republic , the Court of Appeal emphasised that “ it is possible for a witness to be honest but mistaken and for a number of witnesses to all be mistaken.”
29. To aid in the exercise of this “circumspection” our courts have adopted the guidelines for receiving and considering identification evidence set out in the famous English case of Regina v Turnbull [1976] 3WLR 445 . They are nine in number and they instruct a judicial officer who is considering evidence on identification to ask the following questions:
i. How long did the witnesses have the accused under their observation?
ii. What was the distance between the witnesses and the accused person?
iii. What was the lighting situation?
iv. Was the observation impeded in any way, as for example, by passing traffic or press of the people?
v. Had the witnesses ever seen the accused person?
vi. If the witnesses knew the accused prior to the current transaction, how often?
vii. If the witnesses had seen the accused only occasionally prior to the current transaction, did the witness have any specific reason for remembering the accused?
viii. How long elapsed between the original observation and the subsequent identification to the police?
ix. Was there any material discrepancy between the description of the accused given to the Police by the witnesses when first seen by them and his actual appearance?
30. The Appellant was not known to PW4.
31. The appellant has alleged that there a monumental inconsistences and contradictions in the prosecution’s case. This ground of appeal is misplaced. I find the prosecution case to be consistent and coherent with no material contradictions.
32. In the premises, the Court finds that the prosecution proved the ingredient of identification beyond reasonable doubt.
(ii) Whether the conviction and sentence by the trial court were safe and justified in the circumstances of the case.
33. Having carefully re-evaluated the entire evidence on record and having found that the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt, this Court is satisfied that the conviction entered by the learned trial Magistrate was safe and firmly grounded on the evidence. Consequently, the appeal against conviction is devoid of merit and is hereby dismissed.
34. This Court now turns to consider the propriety and legality of the sentence imposed by the trial court. The question for determination is whether the sentence meted out was consistent with the applicable provisions of the law and whether there exists any basis upon which this Court should interfere with the same.
35. It is trite law that sentencing is the discretion of the trial court. In Shadrack Kipkoech Kogo v R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus as regards interference with sentence:
Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka v R. (1989 KLR 306)
36. Also, Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR restated thus:
It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist. (Emphasis added)
37. Before considering whether there is any basis for interfering with the sentence imposed by the trial court, it is important to restate the objectives of sentencing in criminal matters. Sentencing serves multiple purposes, including punishment, deterrence, rehabilitation, denunciation of unlawful conduct, and the protection of society from offenders.
38. In the case of Republic v Elijah Munee Ndundu and another [1978] eKLR the court while considering the purpose of penalties in criminal cases observed:
Reformation is a fair enough consideration but not the main object of penalties in criminal cases. One of the aims of punishment is to deter the individual offender and to deter others who may be tempted to commit similar offences (see Samuel v The Republic [1968] EA 1). It is an important function of any State to protect its citizens. This involves protection of society from crime and criminals…In considering whether to impose custodial sentences, and particularly long terms of imprisonment, one consideration that plays an important role is the need to remove the offender from society. However, as stated by Lord Denning before the Royal Commission on Capital Punishment, the punishment for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them.
39. The Appellant was convicted under Section 8(1) as read with Section 8(3) of the Sexual Offences Act and committed to serve custodial sentence of twenty (20) years’ imprisonment.
40. In the circumstances, this Court finds that the sentence imposed by the trial court was lawful and properly anchored in statute, having fallen within the mandatory minimum prescribed under Section 8(4) of the Sexual Offences Act. Accordingly, there exists no legal or factual basis upon which this Court can interfere with the sentence meted out by the trial court, and the same is hereby upheld.
D. DISPOSITION
41. In the upshot, this Court finds no merit in the Appellants’ appeal. The appeal is hereby dismissed in its entirety. The conviction entered by the trial court is upheld as safe, and the sentence imposed is affirmed as lawful.
42. In computing the effective term of imprisonment, the court shall take into account and accord due credit for the period the convict spent in custody during trial.
43. It is so ordered.
Dated and delivered at Malindi this 28 th day of July 2026
C.AKAIGWA
JUDGE
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