REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU CRIMINAL APPEAL NO. E033 OF 2022
FRED OCHIENG MBEYA APPELLANT
VERSUS
REPUBLIC RESPONDENT
(Being an appeal from the original conviction and sentence in Winam PMCRC No.
2 of 2020)
JUDGMENT
1. The Appellant was convicted and sentenced to fifteen (15) years’ imprisonment for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence were that on 1st day of January 2020 at Dago village, Nyalenda A location in Kisumu East sub-county, within Kisumu County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of P.A.O a child aged 14 years.
3. Aggrieved by the sentence imposed by the trial court, the Appellant filed the present Appeal and listed the following grounds of appeal in his Petition of Appeal: -
a. That he is a first offender, a layman, and remorseful for the offence committed.
b. That the offence occurred in an unintentional drunken state and without premeditation.
c. That he conducted himself respectfully throughout the trial and pleaded for leniency.
d. That the sentence imposed failed to consider Article 50(2)(p) of the Constitution.
e. That there were no aggravating factors during the commission of the offence.
f. That he is 30 years old, a father of nine, and the sole breadwinner of his family.
g. That his wife is overwhelmed by responsibilities in his absence.
h. That the mandatory sentence imposed failed to reflect principles of individualized justice.
4. The appeal was argued orally and through written submissions. The Appellant, acting in person, reiterated his plea for leniency, citing remorse, his first-time offender status, and his family's hardship. The prosecution opposed the appeal but did not seek enhancement of the sentence.
5. The Appellant submitted that the sentence imposed by the trial court was harsh and excessive considering the circumstances of the case and the tenets of the Constitution. He argued that
the trial court should have sought guidance from recent court precedents where courts have departed from imposing the minimum mandatory sentences.
6. The duty of a first appellate court was restated in the case of David Njuguna Wairimu vs.
Republic [2010] eKLR where the Court of Appeal cited the case of Okeno v. R [1972] EA. 32 and held thus: -
“The duty of the first appellate court is to analyse the re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellant court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has
considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”
7. I have carefully considered the record of appeal and the parties’ respective submissions. I find that the main issue for determination is whether this Court can interfere with the sentence passed by the trial court.
8. It is trite that sentencing is at the discretion of the trial court which discretion must however be exercised in accordance with set standards and principles of law. The High Court at Kwa Zulu Natal in S. v Nchunu & Another (AR 24/11) [2012] ZAKZPHC6, stated that:-
“It is trite law that the issue of sentencing is one which vests a discretion in the trial court. The trial court considers what a fair and appropriate sentence should be…”
9. Section 8(1) and (3) of the Sexual Offences Act provides as follows:
8(1): A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
8(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 fifteen years.
10. In Republic v Joshua Gichuki Mwangi & Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR), the Supreme Court upheld the constitutionality of mandatory minimum sentences under the Sexual Offences Act. The Court expressly held that:
…statutory minimum sentences under the Sexual Offences Act are neither unconstitutional nor a violation of the right to fair trial. Courts are bound to apply them as enacted unless and until amended by Parliament.”
11. The Supreme Court further clarified that courts cannot invoke the Muruatetu reasoning to depart from mandatory minimums prescribed in the Sexual Offences Act. As such, mitigation in such cases may only be considered where the law expressly permits discretion beyond the minimum.
12. The Appellant was convicted of defiling a 14-year-old girl. The law under which he was convicted mandates a minimum sentence of fifteen (15) years. The trial court acted within the confines of the statute, and its hands were tied by the plain wording of Section 8(3).
13. While this Court sympathizes with the Appellant’s personal circumstances, including his family responsibilities and expression of remorse, the Supreme Court in Mwangi made it clear that sentencing courts are not at liberty to reduce mandatory minimums in sexual offence cases.
14. Therefore, this Court is bound by that authority. The sentence imposed by the trial court was lawful, proportionate, and constitutional. There is no legal basis upon which this Court can interfere.
15. In light of the binding pronouncement of the Supreme Court in Republic v Mwangi & Others Petition No 18 of 2023, (2024) KESC 34 (KLR) (12 July 2024), and considering the circumstances of this case, I find no merit in the appeal on sentence.
16. Accordingly, the appeal is hereby dismissed in its entirety. The conviction and sentence of fifteen (15) years’ imprisonment imposed by the trial court are upheld in full.
DELIVERED, DATED AND SIGNED AT KISUMU THIS 5th DAY OF AUGUST 2025.
M.S. SHARIFF
JUDGE
IN THE HIGH COURT OF KENYA AT KISUMU CRIMINAL APPEAL NO. E033 OF 2022
FRED OCHIENG MBEYA APPELLANT
VERSUS
REPUBLIC RESPONDENT
(Being an appeal from the original conviction and sentence in Winam PMCRC No.
2 of 2020)
JUDGMENT
1. The Appellant was convicted and sentenced to fifteen (15) years’ imprisonment for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence were that on 1st day of January 2020 at Dago village, Nyalenda A location in Kisumu East sub-county, within Kisumu County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of P.A.O a child aged 14 years.
3. Aggrieved by the sentence imposed by the trial court, the Appellant filed the present Appeal and listed the following grounds of appeal in his Petition of Appeal: -
a. That he is a first offender, a layman, and remorseful for the offence committed.
b. That the offence occurred in an unintentional drunken state and without premeditation.
c. That he conducted himself respectfully throughout the trial and pleaded for leniency.
d. That the sentence imposed failed to consider Article 50(2)(p) of the Constitution.
e. That there were no aggravating factors during the commission of the offence.
f. That he is 30 years old, a father of nine, and the sole breadwinner of his family.
g. That his wife is overwhelmed by responsibilities in his absence.
h. That the mandatory sentence imposed failed to reflect principles of individualized justice.
4. The appeal was argued orally and through written submissions. The Appellant, acting in person, reiterated his plea for leniency, citing remorse, his first-time offender status, and his family's hardship. The prosecution opposed the appeal but did not seek enhancement of the sentence.
5. The Appellant submitted that the sentence imposed by the trial court was harsh and excessive considering the circumstances of the case and the tenets of the Constitution. He argued that
the trial court should have sought guidance from recent court precedents where courts have departed from imposing the minimum mandatory sentences.
6. The duty of a first appellate court was restated in the case of David Njuguna Wairimu vs.
Republic [2010] eKLR where the Court of Appeal cited the case of Okeno v. R [1972] EA. 32 and held thus: -
“The duty of the first appellate court is to analyse the re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellant court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has
considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”
7. I have carefully considered the record of appeal and the parties’ respective submissions. I find that the main issue for determination is whether this Court can interfere with the sentence passed by the trial court.
8. It is trite that sentencing is at the discretion of the trial court which discretion must however be exercised in accordance with set standards and principles of law. The High Court at Kwa Zulu Natal in S. v Nchunu & Another (AR 24/11) [2012] ZAKZPHC6, stated that:-
“It is trite law that the issue of sentencing is one which vests a discretion in the trial court. The trial court considers what a fair and appropriate sentence should be…”
9. Section 8(1) and (3) of the Sexual Offences Act provides as follows:
8(1): A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
8(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 fifteen years.
10. In Republic v Joshua Gichuki Mwangi & Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR), the Supreme Court upheld the constitutionality of mandatory minimum sentences under the Sexual Offences Act. The Court expressly held that:
…statutory minimum sentences under the Sexual Offences Act are neither unconstitutional nor a violation of the right to fair trial. Courts are bound to apply them as enacted unless and until amended by Parliament.”
11. The Supreme Court further clarified that courts cannot invoke the Muruatetu reasoning to depart from mandatory minimums prescribed in the Sexual Offences Act. As such, mitigation in such cases may only be considered where the law expressly permits discretion beyond the minimum.
12. The Appellant was convicted of defiling a 14-year-old girl. The law under which he was convicted mandates a minimum sentence of fifteen (15) years. The trial court acted within the confines of the statute, and its hands were tied by the plain wording of Section 8(3).
13. While this Court sympathizes with the Appellant’s personal circumstances, including his family responsibilities and expression of remorse, the Supreme Court in Mwangi made it clear that sentencing courts are not at liberty to reduce mandatory minimums in sexual offence cases.
14. Therefore, this Court is bound by that authority. The sentence imposed by the trial court was lawful, proportionate, and constitutional. There is no legal basis upon which this Court can interfere.
15. In light of the binding pronouncement of the Supreme Court in Republic v Mwangi & Others Petition No 18 of 2023, (2024) KESC 34 (KLR) (12 July 2024), and considering the circumstances of this case, I find no merit in the appeal on sentence.
16. Accordingly, the appeal is hereby dismissed in its entirety. The conviction and sentence of fifteen (15) years’ imprisonment imposed by the trial court are upheld in full.
DELIVERED, DATED AND SIGNED AT KISUMU THIS 5th DAY OF AUGUST 2025.
M.S. SHARIFF
JUDGE