1. This Appeal arises from the Judgement delivered on 14/03/2023 in Iten Senior Principal Magistrates’ Sexual Offence Case No. E009 of 2022. The Appellant was charged with the offence of Defilement contrary to Section 8(1) as read with 8(3) of the Sexual Offences Act and upon considering the evidence tendered in court and testimonies tendered in court, the court sentenced him to serve 20 years’ imprisonment.
2. Being aggrieved with the sentence, the Appellant instituted this appeal against sentence vide the Petition of Appeal filed on 24/08/2023. The appeal is premised on the grounds that he is a first offender, remorseful and repentant. He sought to be reconstituted to society to mentor others and urged the court to consider the sentencing guidelines of 2016 in establishing the mitigating circumstances that would lessen the custodial sentence.
3. The Appeal was prosecuted by way of written submissions. The appellant filed submissions dated 11th April 2004 whereas the State, through Prosecution Counsel Calvin Kirui, filed submissions dated 28th May 2004.
Appellants submissions
4. The court notes that in his submissions, the Appellant began his submissions by listing what he is termed therein as ‘Amended grounds of appeal’. In the said Amended Grounds, he urged as follows;
1. The trial magistrate erred in law and fact as the evidence does not support his conviction. The facts on record does not conclusively prove the act of penetration as both the vaginal and anus were found to be intact hence conviction was wrong.
2. The trial magistrate erred in law and fact when she entertained an outrageous and irrational evidence when the doctor indicated that the space between the vulva and anus is capable of being red on being stimulated while on the contrary it is only the inside of both the vagina and the anus that are capable of being red.
3. The trial magistrate erred in law and fact by sentencing the appellant based on contradictory and inconsistent evidence by the prosecution witnesses in this instance the complainant indicated that she screamed when the appellant placed his genitalia inside her susu on cross examination she said it happened when the appellant was about to sleep on top of her, the eye witness in the case said the appellant did not have his trousers on and then on cross exam the trouser was lowered.
4. That the trial magistrate erred in law and fact by accepting photos presented to court showing the arrest of the appellant as an expert witness (police woman) which was illegal as she was not gazetted. Furthermore, the photos were taken by the investigating officer who had to take back appellant to the forest for the exercise after picking him up at chief’s office she obtained evidence illegally.
5. That the trial magistrate erred in law and fact by convicting and sentencing the appellant based on hearsay evidence as most of the evidence presented by witnesses was what they were told for instance PW3 & PW4 indicated they were stating what they were told. This was an inadmissible evidence that was used to convict and sentence him.
6. That the trial magistrate erred in law and fact by convicting and sentencing the appellant based on a defective charge sheet as the particulars did not match the evidence on record for instance both the anus and vagina were found to be intact which was at variance with the particularization of the charge sheet.
7. That the trial magistrate erred in law and fact by convicting and sentencing the appellant based on extraneous issues for instance she indicated: that the doctor noted bruises along the labia minora and majora and that they were swollen which was not accurate as there was no such evidence presented by the doctor.
8. That the trial magistrate erred in law and fact by convicting and sentencing the appellant based on a faulty P3 form in terms of authenticity and content. The P3 form was wrongly filled for instance section c 2 specifies discharges from the genitalia and body to be indicated, she wrote a tear at 6 o’clock under that section, on section 2 (a) the purported redness of the area between the anus and vagina is not indicated.
9. That the trial magistrate erred in law and fact, by not considering his explanation of events by dismissing it as untrustworthy hence dismissing his defence in toto.
10. That the trial magistrate erred in law and fact by not making a finding the case was not proved beyond reasonable doubt, instead she filled up the discrepancy by introducing non-existent evidence to fix the appellant more so, on the ingredient of penetration when she said there were bruises in labia minora and majora and that they were swollen.
11. That the trial magistrate erred in law and fact by ensuring there was absence of impartiality which was a violation of his right under articles 48 and 50 (1) of the Constitution. The trial magistrate always ruled in favour of the prosecution in the numerous very last adjournments and allowing many mistakes to pass.
12. That the trial magistrate erred in law and fact by imposing a minimum mandatory sentence which is outlawed as it denied him a chance of getting an appropriate or lesser, lenient sentence contravening article 50 (2) (p) of the Constitution. Further to that the mitigation on record did not apply to his case causing him to suffer a harsh and excessive sentence or something he did not do.
13. That the trial magistrate erred in law and fact by not-making an-adverse finding that key witnesses were not in court specifically the two boys but instead allowed coached witnesses to frame him up for following up on his missing phone.
10. From a perusal of these amended grounds, it is clear from their import and purport that the Applicant therein is attacking the conviction that was reached by the Lower Court. However, because the contents of the Petition of Appeal filed is only against sentence, I shall consider the appellants’ submissions on sentence only as the conviction was not the subject of this appeal. In this regard, the Appellant only submitted on the constitutionality of the sentence. He urged that the trial court erred in law by imposing the mandatory sentence of 20 years as it had the effect of denying him the benefit of the provisions of Article 50(2)(p) of the Constitution of Kenya. Further that this was done by curtailing the courts’ discretion to impose an appropriate sentence after taking into account the mitigating factors. He urged that if the court had done the same it would have imposed a 10-year sentence and prayed that this court review this critical omission by reviewing the sentence downwards.
Respondents’ Submissions
11. Counsel for the state submitted that, on the ground of being a first offender, the trial court was informed by the prosecution that the Appellant did not have previous records of convictions and further, that he was granted a chance to mitigate and he prayed for leniency from the trial court. These issues were considered by the trial court and therefore, the Appellant cannot base his appeal on grounds that were already considered and taken into account by the trial court without manifesting any illegality and injustice.
12. On the grounds of remorse, reform and repentance, counsel urged that these issues were considered by the trial court after conviction and before sentencing. Further, that the sentence meted on the appellant was legal and lawful and reflected the seriousness of his offence. Additionally, that as per the Judicial Sentencing Policy Guidelines 2016, one of the purposes of punishment is to act as a deterrence for the commission of offences. He submitted that if the court allows the appeal, the purpose of the punishment will not be served.
13. Counsel urged the court not to interfere with the trial court's discretion in sentencing, unless it is demonstrated that the sentence was manifestly excessive, illegal, improper, or founded based on misrepresentation of material facts. In this regard, he placed reliance on the decision of the Court of Appeal in Benard Kimani Gacheru vs Republic and stated that the appellant has failed to demonstrate to this court that the trial court sentence was manifestly excessive, illegal, improper and or founded on the wrong principles. He urged the court to dismiss the appeal.
Analysis & Determination
14. The appellant filed amended grounds of appeal in his submissions. However, apart from the fact that submissions are not pleadings Section 350(2) of the Criminal Procedure Code is explicit that the court in its consideration of any appeal filed, it must only handle the grounds that are listed in the Petition as being in support of the Appeal. There is therefore no room for bringing fresh grounds through submissions in the manner that the Appellant has purported to do without complying with the provisions of Section 350(2)(iv) thereof. In this regard, the court will therefore only deal with the issues that arise are as per the Petition of Appeal filed to wit; Whether the Court should interfere with the sentence of 20 years’ imprisonment.
15. The applicable principles in considering sentence on appeal were restated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, in the following terms:
“It is now settled law, following several authorities by this court and the high court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the 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 the wrong material, or acted on the 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 stated is shown to exist”.
11. Section 8(1) as read with Section 8(3) of the Sexual Offences Act provides as follows;
(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.
12. In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) the Court when discussing the issue of mandatory sentences under the Sexual Offences Act held as hereunder;
“………. 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…………”
13. In light of this decision of the Supreme Court validating the legality of the sentences prescribed in the Sexual Offences Act, and in consideration of the fact that it is stated in the charge sheet that the complainant was a child aged 12 years and that this assertion was not at all rebutted and/or controverted by the Appellant, then under the relevant provision of the Act as herein reproduced, the minimum and mandatory sentence is 20 years imprisonment and it is this sentence that the Trial Court meted out to the Appellant. The same is therefore legal valid and lawful and this court now hereby upholds the same. The upshot of this finding is that the Applicant’s Application lacks merit and the same is accordingly dismissed. Right of Appeal 14 days
Read Dated and Signed at ELDORET on 9th July 2025
2. Being aggrieved with the sentence, the Appellant instituted this appeal against sentence vide the Petition of Appeal filed on 24/08/2023. The appeal is premised on the grounds that he is a first offender, remorseful and repentant. He sought to be reconstituted to society to mentor others and urged the court to consider the sentencing guidelines of 2016 in establishing the mitigating circumstances that would lessen the custodial sentence.
3. The Appeal was prosecuted by way of written submissions. The appellant filed submissions dated 11th April 2004 whereas the State, through Prosecution Counsel Calvin Kirui, filed submissions dated 28th May 2004.
Appellants submissions
4. The court notes that in his submissions, the Appellant began his submissions by listing what he is termed therein as ‘Amended grounds of appeal’. In the said Amended Grounds, he urged as follows;
1. The trial magistrate erred in law and fact as the evidence does not support his conviction. The facts on record does not conclusively prove the act of penetration as both the vaginal and anus were found to be intact hence conviction was wrong.
2. The trial magistrate erred in law and fact when she entertained an outrageous and irrational evidence when the doctor indicated that the space between the vulva and anus is capable of being red on being stimulated while on the contrary it is only the inside of both the vagina and the anus that are capable of being red.
3. The trial magistrate erred in law and fact by sentencing the appellant based on contradictory and inconsistent evidence by the prosecution witnesses in this instance the complainant indicated that she screamed when the appellant placed his genitalia inside her susu on cross examination she said it happened when the appellant was about to sleep on top of her, the eye witness in the case said the appellant did not have his trousers on and then on cross exam the trouser was lowered.
4. That the trial magistrate erred in law and fact by accepting photos presented to court showing the arrest of the appellant as an expert witness (police woman) which was illegal as she was not gazetted. Furthermore, the photos were taken by the investigating officer who had to take back appellant to the forest for the exercise after picking him up at chief’s office she obtained evidence illegally.
5. That the trial magistrate erred in law and fact by convicting and sentencing the appellant based on hearsay evidence as most of the evidence presented by witnesses was what they were told for instance PW3 & PW4 indicated they were stating what they were told. This was an inadmissible evidence that was used to convict and sentence him.
6. That the trial magistrate erred in law and fact by convicting and sentencing the appellant based on a defective charge sheet as the particulars did not match the evidence on record for instance both the anus and vagina were found to be intact which was at variance with the particularization of the charge sheet.
7. That the trial magistrate erred in law and fact by convicting and sentencing the appellant based on extraneous issues for instance she indicated: that the doctor noted bruises along the labia minora and majora and that they were swollen which was not accurate as there was no such evidence presented by the doctor.
8. That the trial magistrate erred in law and fact by convicting and sentencing the appellant based on a faulty P3 form in terms of authenticity and content. The P3 form was wrongly filled for instance section c 2 specifies discharges from the genitalia and body to be indicated, she wrote a tear at 6 o’clock under that section, on section 2 (a) the purported redness of the area between the anus and vagina is not indicated.
9. That the trial magistrate erred in law and fact, by not considering his explanation of events by dismissing it as untrustworthy hence dismissing his defence in toto.
10. That the trial magistrate erred in law and fact by not making a finding the case was not proved beyond reasonable doubt, instead she filled up the discrepancy by introducing non-existent evidence to fix the appellant more so, on the ingredient of penetration when she said there were bruises in labia minora and majora and that they were swollen.
11. That the trial magistrate erred in law and fact by ensuring there was absence of impartiality which was a violation of his right under articles 48 and 50 (1) of the Constitution. The trial magistrate always ruled in favour of the prosecution in the numerous very last adjournments and allowing many mistakes to pass.
12. That the trial magistrate erred in law and fact by imposing a minimum mandatory sentence which is outlawed as it denied him a chance of getting an appropriate or lesser, lenient sentence contravening article 50 (2) (p) of the Constitution. Further to that the mitigation on record did not apply to his case causing him to suffer a harsh and excessive sentence or something he did not do.
13. That the trial magistrate erred in law and fact by not-making an-adverse finding that key witnesses were not in court specifically the two boys but instead allowed coached witnesses to frame him up for following up on his missing phone.
10. From a perusal of these amended grounds, it is clear from their import and purport that the Applicant therein is attacking the conviction that was reached by the Lower Court. However, because the contents of the Petition of Appeal filed is only against sentence, I shall consider the appellants’ submissions on sentence only as the conviction was not the subject of this appeal. In this regard, the Appellant only submitted on the constitutionality of the sentence. He urged that the trial court erred in law by imposing the mandatory sentence of 20 years as it had the effect of denying him the benefit of the provisions of Article 50(2)(p) of the Constitution of Kenya. Further that this was done by curtailing the courts’ discretion to impose an appropriate sentence after taking into account the mitigating factors. He urged that if the court had done the same it would have imposed a 10-year sentence and prayed that this court review this critical omission by reviewing the sentence downwards.
Respondents’ Submissions
11. Counsel for the state submitted that, on the ground of being a first offender, the trial court was informed by the prosecution that the Appellant did not have previous records of convictions and further, that he was granted a chance to mitigate and he prayed for leniency from the trial court. These issues were considered by the trial court and therefore, the Appellant cannot base his appeal on grounds that were already considered and taken into account by the trial court without manifesting any illegality and injustice.
12. On the grounds of remorse, reform and repentance, counsel urged that these issues were considered by the trial court after conviction and before sentencing. Further, that the sentence meted on the appellant was legal and lawful and reflected the seriousness of his offence. Additionally, that as per the Judicial Sentencing Policy Guidelines 2016, one of the purposes of punishment is to act as a deterrence for the commission of offences. He submitted that if the court allows the appeal, the purpose of the punishment will not be served.
13. Counsel urged the court not to interfere with the trial court's discretion in sentencing, unless it is demonstrated that the sentence was manifestly excessive, illegal, improper, or founded based on misrepresentation of material facts. In this regard, he placed reliance on the decision of the Court of Appeal in Benard Kimani Gacheru vs Republic and stated that the appellant has failed to demonstrate to this court that the trial court sentence was manifestly excessive, illegal, improper and or founded on the wrong principles. He urged the court to dismiss the appeal.
Analysis & Determination
14. The appellant filed amended grounds of appeal in his submissions. However, apart from the fact that submissions are not pleadings Section 350(2) of the Criminal Procedure Code is explicit that the court in its consideration of any appeal filed, it must only handle the grounds that are listed in the Petition as being in support of the Appeal. There is therefore no room for bringing fresh grounds through submissions in the manner that the Appellant has purported to do without complying with the provisions of Section 350(2)(iv) thereof. In this regard, the court will therefore only deal with the issues that arise are as per the Petition of Appeal filed to wit; Whether the Court should interfere with the sentence of 20 years’ imprisonment.
15. The applicable principles in considering sentence on appeal were restated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, in the following terms:
“It is now settled law, following several authorities by this court and the high court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the 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 the wrong material, or acted on the 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 stated is shown to exist”.
11. Section 8(1) as read with Section 8(3) of the Sexual Offences Act provides as follows;
(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.
12. In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) the Court when discussing the issue of mandatory sentences under the Sexual Offences Act held as hereunder;
“………. 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…………”
13. In light of this decision of the Supreme Court validating the legality of the sentences prescribed in the Sexual Offences Act, and in consideration of the fact that it is stated in the charge sheet that the complainant was a child aged 12 years and that this assertion was not at all rebutted and/or controverted by the Appellant, then under the relevant provision of the Act as herein reproduced, the minimum and mandatory sentence is 20 years imprisonment and it is this sentence that the Trial Court meted out to the Appellant. The same is therefore legal valid and lawful and this court now hereby upholds the same. The upshot of this finding is that the Applicant’s Application lacks merit and the same is accordingly dismissed. Right of Appeal 14 days
Read Dated and Signed at ELDORET on 9th July 2025