(Being an appeal from original conviction and sentence in Wang’uru Magistrates Court S.O. Case No. 16 of 2020 delivered on 7/3/2022 by Hon. Lorot, Chief Magistrate)
1. The appellant, Eliud Chomba Njiru was charged and convicted of the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. The particulars of the offence were that the appellant on 7/8/2020 at Migambaciura village Murinduko village within Kirinyaga County intentionally caused his penis to penetrate the vagina of M.N.M. a child aged 7 years.
2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya based on the same circumstances but having been convicted on the principal charge, the same was not proceeded with.
3. His appeal herein is on sentence only. Even though in the headnote he indicates that it is on conviction and sentence, the grounds upon which it is premised and taken up in his submissions are those on sentence only.
4. At the end of the trial, the accused person was found guilty of the principal charge of defilement and he was convicted and sentenced to serve life imprisonment.
5. The appellant was aggrieved by the decision of the trial court and in his undated grounds of appeal which were filed in court on 25/9/2023 he states that:
i. He pleaded not guilty to the offence.
ii. The trial court did not comply with the provisions of Article 50(2)(p) of the Constitution of Kenya when passing its verdict.
iii. The trial court did not comply with the provisions of Articles 27(1), 28, 259(1)(b)(c)(d) of the Constitution of Kenya, likewise section 216 and 329 of the CPC
iv. The imposed sentence is manifestly harsh and excessive hence seeking this court to re-evaluate.
6. In support of these grounds, the appellant submits that the same are only on ground numbers two, three and four on the original sentence that was imposed by the trial court on 7/3/2020 where the court imposed a sentence of life imprisonment upon him.
7. The appellant submits that the sentence imposed upon him of life imprisonment is harsh and excessive. He appears to state that the trial court did not take into account his mitigation and that he is very remorseful of what happened and he asks this court to reduce the sentence to a less severe one in line with Article 50(2)(p) of the constitution.
8. In another part in the submissions, the appellant submits that he never committed the offence of defilement but the case was made up against him because his family was fed up with his conduct of being arrogant, hostile, bhang smoker and a totally disorderly person. That his family had cautioned him about the above conduct but he never heeded. That when they brought up these charges against him, they knew that he was just being castigated for a while or for some period but now they realize that the offence has only one sentence, they are totally confused. He pleads that, now he has spent time in custody, he has come to his senses and regrets his past conduct. That the guilt of what happened kept haunting him but through constant counselling in church and other life mentors in prison he has accepted himself, he has rediscovered himself and is reformed and rehabilitated. He prays to this court to temper justice with mercy and lenience and give him another chance.
9. To that extent, all that is contained in the appellants submissions is mitigation as to why this court should reconsider the sentence and be lenient to him.
10. However, later in the submissions the appellant states that he is not challenging the issue of age and identification of the victim but contests the issue of penetration which according to him was not proved. He pointed out various aspects of the evidence which he contends show that the issue of penetration was not proved.
11. The appeal was opposed by the respondent who filed written submissions. The submissions by the respondent set out the issues for determination to be:
a. whether the respondent proved the essential ingredients of the offence of defilement.
b. whether the respondent proved its case beyond reasonable doubt.
12. Clearly, these issues and the submissions thereon do not address the grounds set out by the appellant which he took up in his submissions having expressly stated that he was only pursuing grounds (ii), (iii) and (iv) which only deal with the sentence imposed. This court can only deal with the appeal as per the grounds set out in the memorandum and taken up in the submissions. The court cannot consider issues or submissions that are not raised in the memorandum of appeal and argued in the submissions. On this issue the Court of Appeal in the case of Edwin Otieno Odhiambo v Republic [2009] KECA 430 (KLR) observed thus:
“Ordinarily as the first appellate court our obligation would have been to review the entire evidence given in the matter in order to determine whether the conclusion reached upon the evidence should stand – see the case of KIMEU V. REPUBLIC [2002] KLR 756. However, we are not obliged to do so in the special circumstances of this appeal except on the issue of sentence. The … reason is that when the appeal came up for hearing the learned counsel for the appellant, Mr. Aringo, abandoned grounds 1 – 4 of the memorandum of appeal and confined himself to ground five (5) only….”
13. Similarly, in the case of Brade Gate Holdings Limited v Mwangi [2024] KECA 1011 (KLR) the Court of Appeal considering a similar scenario in a civil appeal held that:
“From the grounds in the Memorandum of Appeal, the appellant raised no issue regarding the award and orders that the trial Judge granted after the finding that the dismissal was unfair and unlawful. Learned counsel for the appellant sought to challenge the award during the written submissions. Unfortunately, the appeal was confined to the grounds in the appeal. The appellant could not submit beyond those grounds.”
14. From the foregoing decisions, it follows that the submissions by the appellant on the issue of lack of evidence to prove penetration and the respondent’s submissions on conviction which are largely outside the grounds of appeal set out in the memorandum of appeal and argued in the submissions by the appellant and the appellant having expressly abandoned ground 1, where he had stated that he had pleaded not guilty, cannot be considered by this court.
15. I have carefully considered the grounds of appeal in the petition, the evidence tendered at the trial on sentence and the trial court’s findings thereon, the submissions by the appellant and the respondent as well as the sentence meted out by the trial court. The issue for determination is whether the sentence of life imprisonment imposed by the trial court was meritorious.
16. The process of sentencing is important in a trial just as the process leading to the judgment as was held by the Constitutional Court of Uganda in the case of Attorney General v Susan Kigula & 417 Others, Supreme Court of Uganda Constitutional Appeal No. 3 of 2006 as cited in the case of Joseph Kaberia Kahinga , Joseph Bariu Imiemba, Frederick David Tsuma, Joseph Mutuma, Daniel Kioko Mbuva, Joseph Mwaura, Musa Omolo Ogolla, Peter Matiku Muhiru, Titus Mutulu Kimomo, Aggrey Chiteki, Wilson Mwangi Kinyua & Ibrahim Ali Halake v Attorney General [2016] KEHC 3130 (KLR) that:
“A trial does not stop at convicting a person. The process of sentencing a person is part of the trial. This is because the court will consider the evidence, the nature of the offence and the circumstances of the case in order to arrive at an appropriate sentence.”
17. On appeal, the principles which guide the appellate court in considering a review of sentence are as enunciated in the case of Ogalo s/o Owoura v. Reginam (1954) EACA, 270 that:
“The principles upon which an Appellate Court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by trial Judge unless … it is evident that the Judge acted upon some wrong principle or overlooked some material factor. To this we would add a third criteria, namely that the sentence is manifestly excessive in view of the circumstances of the case.”
18. The appellant submits that the learned trial magistrate passed a sentence that was harsh and excessive. The respondent submits that the sentence is well anchored in law and therefore sufficient. Learned counsel for the respondent has cited 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) where the Supreme Court held that a court cannot impose a sentence below the minimum prescribed by law.
19. Section 8(2) of the Sexual Offences Act under which the appellant was sentenced provides that, “a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”
20. By the wording of that section expressed as “… shall upon conviction be sentenced to…” it makes the sentence mandatory. In that case, the trial court had no discretion to pass a lesser sentence other than that provided for under the law.
21. This court is aware that at some point acting on the strength of the reasoning and decision in the case of Francis Karioko Muruatetu and Another vs Republic [2017] eKLR, the High Court and even the Court of Appeal routinely reviewed minimum sentences imposed on convicts for different offences other than murder, including for sexual offences and robbery with violence. However, by the clarification made by the same Supreme Court in its subsequent directions given in Muruatetu & Another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions), the Supreme Court made it clear that the principles in Muruatetu on sentencing only applied to murder cases, and not to any other type of case, including sexual offences. The Supreme Court stated thus:
“It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it …
We therefore reiterate that this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute…
It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution.”
22. And as submitted by learned counsel for the respondent the Supreme Court has subsequently in its decision in a case of a sexual offence Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) delivered on 12/7/2024 affirmed the position that Muruatetu is not applicable in cases under the Sexual Offences Act.
23. This court is bound by the decision of the Supreme Court and applying the decisions cited herein, I find that the grounds and submissions by the appellant that the learned trial magistrate imposed a harsh and excessive sentence is without merit and the same is rejected. The learned trial magistrate imposed the minimum sentence for the offence as provided for under the law. This court has no jurisdiction to review the sentence passed as per the plea by the appellant herein.
24. The appellant’s other grounds of appeal on the issue of sentence were that the learned trial magistrate failed to comply with Articles 27(1), 28, 50(2)(p), and 259(1)(b), (c), (d) of the constitution and sections 216 and 329 of the Criminal Procedure Code (Cap. 75) Laws of Kenya. In his submissions, he did not expound on how these provisions of the law were not complied with.
25. These provisions of the law are in the following terms:
i. Article 27(1): Every person is equal before the law and has the right to equal protection and equal benefit of the law.
ii. Article 28: Every person has inherent dignity and the right to have that dignity respected and protected.
iii. Article 50(2)(p): Every accused person has the right to a fair trial, which includes the right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.
iv. Article 259(1): This Constitution shall be interpreted in a manner that—
a) …
b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
c) permits the development of the law; and
d) contributes to good governance.
26. Section 216 CPC provides (in relation to procedure in trials before subordinate courts) that:
“The court may, before passing sentence or making an order against an accused person under section 215, receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed or made.”
27. Section 329 CPC provides (in relation to procedure in trials before the High Court) that:
“The court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed.”
28. I have looked at the trial court record and I do not find any breach of the said provisions. The learned trial magistrate considered the mitigation by the appellant which was that he had been framed for the offence and found that he was not remorseful.
29. I find that the appellant was properly sentenced to life imprisonment as per the provisions of section 8(2) of the Sexual Offences Act. He was given the minimum sentence prescribed under the law and hence cannot complain that the sentence was harsh and excessive as the trial court had no discretion to meet out a lesser sentence.
30. Accordingly, for the reasons set out above, I find that the appeal has no merit and the same is dismissed.
31. It is so ordered.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 24th day of June 2025 in the presence of:
The appellant in person from Nyeri prison.
Muriithi for the respondent
Job: court assistant.
1. The appellant, Eliud Chomba Njiru was charged and convicted of the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. The particulars of the offence were that the appellant on 7/8/2020 at Migambaciura village Murinduko village within Kirinyaga County intentionally caused his penis to penetrate the vagina of M.N.M. a child aged 7 years.
2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya based on the same circumstances but having been convicted on the principal charge, the same was not proceeded with.
3. His appeal herein is on sentence only. Even though in the headnote he indicates that it is on conviction and sentence, the grounds upon which it is premised and taken up in his submissions are those on sentence only.
4. At the end of the trial, the accused person was found guilty of the principal charge of defilement and he was convicted and sentenced to serve life imprisonment.
5. The appellant was aggrieved by the decision of the trial court and in his undated grounds of appeal which were filed in court on 25/9/2023 he states that:
i. He pleaded not guilty to the offence.
ii. The trial court did not comply with the provisions of Article 50(2)(p) of the Constitution of Kenya when passing its verdict.
iii. The trial court did not comply with the provisions of Articles 27(1), 28, 259(1)(b)(c)(d) of the Constitution of Kenya, likewise section 216 and 329 of the CPC
iv. The imposed sentence is manifestly harsh and excessive hence seeking this court to re-evaluate.
6. In support of these grounds, the appellant submits that the same are only on ground numbers two, three and four on the original sentence that was imposed by the trial court on 7/3/2020 where the court imposed a sentence of life imprisonment upon him.
7. The appellant submits that the sentence imposed upon him of life imprisonment is harsh and excessive. He appears to state that the trial court did not take into account his mitigation and that he is very remorseful of what happened and he asks this court to reduce the sentence to a less severe one in line with Article 50(2)(p) of the constitution.
8. In another part in the submissions, the appellant submits that he never committed the offence of defilement but the case was made up against him because his family was fed up with his conduct of being arrogant, hostile, bhang smoker and a totally disorderly person. That his family had cautioned him about the above conduct but he never heeded. That when they brought up these charges against him, they knew that he was just being castigated for a while or for some period but now they realize that the offence has only one sentence, they are totally confused. He pleads that, now he has spent time in custody, he has come to his senses and regrets his past conduct. That the guilt of what happened kept haunting him but through constant counselling in church and other life mentors in prison he has accepted himself, he has rediscovered himself and is reformed and rehabilitated. He prays to this court to temper justice with mercy and lenience and give him another chance.
9. To that extent, all that is contained in the appellants submissions is mitigation as to why this court should reconsider the sentence and be lenient to him.
10. However, later in the submissions the appellant states that he is not challenging the issue of age and identification of the victim but contests the issue of penetration which according to him was not proved. He pointed out various aspects of the evidence which he contends show that the issue of penetration was not proved.
11. The appeal was opposed by the respondent who filed written submissions. The submissions by the respondent set out the issues for determination to be:
a. whether the respondent proved the essential ingredients of the offence of defilement.
b. whether the respondent proved its case beyond reasonable doubt.
12. Clearly, these issues and the submissions thereon do not address the grounds set out by the appellant which he took up in his submissions having expressly stated that he was only pursuing grounds (ii), (iii) and (iv) which only deal with the sentence imposed. This court can only deal with the appeal as per the grounds set out in the memorandum and taken up in the submissions. The court cannot consider issues or submissions that are not raised in the memorandum of appeal and argued in the submissions. On this issue the Court of Appeal in the case of Edwin Otieno Odhiambo v Republic [2009] KECA 430 (KLR) observed thus:
“Ordinarily as the first appellate court our obligation would have been to review the entire evidence given in the matter in order to determine whether the conclusion reached upon the evidence should stand – see the case of KIMEU V. REPUBLIC [2002] KLR 756. However, we are not obliged to do so in the special circumstances of this appeal except on the issue of sentence. The … reason is that when the appeal came up for hearing the learned counsel for the appellant, Mr. Aringo, abandoned grounds 1 – 4 of the memorandum of appeal and confined himself to ground five (5) only….”
13. Similarly, in the case of Brade Gate Holdings Limited v Mwangi [2024] KECA 1011 (KLR) the Court of Appeal considering a similar scenario in a civil appeal held that:
“From the grounds in the Memorandum of Appeal, the appellant raised no issue regarding the award and orders that the trial Judge granted after the finding that the dismissal was unfair and unlawful. Learned counsel for the appellant sought to challenge the award during the written submissions. Unfortunately, the appeal was confined to the grounds in the appeal. The appellant could not submit beyond those grounds.”
14. From the foregoing decisions, it follows that the submissions by the appellant on the issue of lack of evidence to prove penetration and the respondent’s submissions on conviction which are largely outside the grounds of appeal set out in the memorandum of appeal and argued in the submissions by the appellant and the appellant having expressly abandoned ground 1, where he had stated that he had pleaded not guilty, cannot be considered by this court.
15. I have carefully considered the grounds of appeal in the petition, the evidence tendered at the trial on sentence and the trial court’s findings thereon, the submissions by the appellant and the respondent as well as the sentence meted out by the trial court. The issue for determination is whether the sentence of life imprisonment imposed by the trial court was meritorious.
16. The process of sentencing is important in a trial just as the process leading to the judgment as was held by the Constitutional Court of Uganda in the case of Attorney General v Susan Kigula & 417 Others, Supreme Court of Uganda Constitutional Appeal No. 3 of 2006 as cited in the case of Joseph Kaberia Kahinga , Joseph Bariu Imiemba, Frederick David Tsuma, Joseph Mutuma, Daniel Kioko Mbuva, Joseph Mwaura, Musa Omolo Ogolla, Peter Matiku Muhiru, Titus Mutulu Kimomo, Aggrey Chiteki, Wilson Mwangi Kinyua & Ibrahim Ali Halake v Attorney General [2016] KEHC 3130 (KLR) that:
“A trial does not stop at convicting a person. The process of sentencing a person is part of the trial. This is because the court will consider the evidence, the nature of the offence and the circumstances of the case in order to arrive at an appropriate sentence.”
17. On appeal, the principles which guide the appellate court in considering a review of sentence are as enunciated in the case of Ogalo s/o Owoura v. Reginam (1954) EACA, 270 that:
“The principles upon which an Appellate Court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by trial Judge unless … it is evident that the Judge acted upon some wrong principle or overlooked some material factor. To this we would add a third criteria, namely that the sentence is manifestly excessive in view of the circumstances of the case.”
18. The appellant submits that the learned trial magistrate passed a sentence that was harsh and excessive. The respondent submits that the sentence is well anchored in law and therefore sufficient. Learned counsel for the respondent has cited 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) where the Supreme Court held that a court cannot impose a sentence below the minimum prescribed by law.
19. Section 8(2) of the Sexual Offences Act under which the appellant was sentenced provides that, “a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”
20. By the wording of that section expressed as “… shall upon conviction be sentenced to…” it makes the sentence mandatory. In that case, the trial court had no discretion to pass a lesser sentence other than that provided for under the law.
21. This court is aware that at some point acting on the strength of the reasoning and decision in the case of Francis Karioko Muruatetu and Another vs Republic [2017] eKLR, the High Court and even the Court of Appeal routinely reviewed minimum sentences imposed on convicts for different offences other than murder, including for sexual offences and robbery with violence. However, by the clarification made by the same Supreme Court in its subsequent directions given in Muruatetu & Another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions), the Supreme Court made it clear that the principles in Muruatetu on sentencing only applied to murder cases, and not to any other type of case, including sexual offences. The Supreme Court stated thus:
“It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it …
We therefore reiterate that this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute…
It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution.”
22. And as submitted by learned counsel for the respondent the Supreme Court has subsequently in its decision in a case of a sexual offence Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) delivered on 12/7/2024 affirmed the position that Muruatetu is not applicable in cases under the Sexual Offences Act.
23. This court is bound by the decision of the Supreme Court and applying the decisions cited herein, I find that the grounds and submissions by the appellant that the learned trial magistrate imposed a harsh and excessive sentence is without merit and the same is rejected. The learned trial magistrate imposed the minimum sentence for the offence as provided for under the law. This court has no jurisdiction to review the sentence passed as per the plea by the appellant herein.
24. The appellant’s other grounds of appeal on the issue of sentence were that the learned trial magistrate failed to comply with Articles 27(1), 28, 50(2)(p), and 259(1)(b), (c), (d) of the constitution and sections 216 and 329 of the Criminal Procedure Code (Cap. 75) Laws of Kenya. In his submissions, he did not expound on how these provisions of the law were not complied with.
25. These provisions of the law are in the following terms:
i. Article 27(1): Every person is equal before the law and has the right to equal protection and equal benefit of the law.
ii. Article 28: Every person has inherent dignity and the right to have that dignity respected and protected.
iii. Article 50(2)(p): Every accused person has the right to a fair trial, which includes the right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.
iv. Article 259(1): This Constitution shall be interpreted in a manner that—
a) …
b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
c) permits the development of the law; and
d) contributes to good governance.
26. Section 216 CPC provides (in relation to procedure in trials before subordinate courts) that:
“The court may, before passing sentence or making an order against an accused person under section 215, receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed or made.”
27. Section 329 CPC provides (in relation to procedure in trials before the High Court) that:
“The court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed.”
28. I have looked at the trial court record and I do not find any breach of the said provisions. The learned trial magistrate considered the mitigation by the appellant which was that he had been framed for the offence and found that he was not remorseful.
29. I find that the appellant was properly sentenced to life imprisonment as per the provisions of section 8(2) of the Sexual Offences Act. He was given the minimum sentence prescribed under the law and hence cannot complain that the sentence was harsh and excessive as the trial court had no discretion to meet out a lesser sentence.
30. Accordingly, for the reasons set out above, I find that the appeal has no merit and the same is dismissed.
31. It is so ordered.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 24th day of June 2025 in the presence of:
The appellant in person from Nyeri prison.
Muriithi for the respondent
Job: court assistant.