' (Being an Appeal against the Judgment and Sentence at the Chief Magistrate’s Court in Nyamira, Criminal (Sexual Offence) Case No. E023 of 2023 delivered by Hon. B.O. Okong’o, Resident Magistrate on 16 th October 2024)
The Appellant herein was charged with the offence of Defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act. The particulars of the charge were that on 18 th 2023, at Charachani Sub-Location, Keera Location, Nyamira South Sub-County within Nyamira County, the Accused person unlawfully and intentionally caused his penis to penetrate the vagina of E.M.W. ( particulars withheld ), a child aged 5 years.
He also faced an alternative count of committing an indecent act with same child under the same Act. He pleaded not guilty to the charge and after a full trial in which the prosecution presented the evidence of four (4) witnesses, the trial court found him guilty on the main count of defilement and sentenced him to serve to serve 40 years’ imprisonment for the first count and 10 years’ imprisonment for the second count, which sentences were to run concurrently.
The Appeal
Aggrieved by trial court’s findings on conviction and sentence, the Appellant filed the instant appeal and listed 9 grounds of appeal in the Memorandum of Appeal. A summary of the said grounds are that the Prosecution did not prove its case to the required standard, presented contradictory and inconsistent evidence, conducted improper investigations and that the evidence was fabricated by the Prosecution witnesses in order to replace him at work with their brother. The Appellant also averred that his defence was not considered and that the sentence meted was harsh and excessive.
The appeal was canvassed by way of written submissions which I have considered. I find that the main issues for determination are whether the prosecution proved the offence of defilement beyond reasonable doubt and whether the sentence passed by the trial court was legal and proper.
A summary of the evidence presented before the trial court was as follows: -
PW1 E.M.W (particulars withheld) . the victim testified that she was on the material day on her way home from school at about 1.00 p.m. when she was accosted by the Appellant, who was well-known to her as “Manager”. She stated that the Appellant took her into the coffee farm where he defiled her and warned her not to tell anyone what had happened. The victim went home where she informed her mother (PW2) of her ordeal. She was later escorted to hospital for treatment and examination.
PW2, Milka Kerubo , the mother of the victim, testified that she was a student at Nyaegesa Polytechnic and that the victim, aged five, was her first child. She knew the accused as a manager at a local coffee factory. On 18th May 2023, when she returned home around 4:00 p.m., her daughter complained of pain in her private parts. Later, when her aunt Marita visited, they examined the child and observed what appeared to be sperms in her genital area. When the child’s grandfather returned and found her crying, he advised them to take her to hospital. At Nyamira County Referral Hospital, the doctor examined the child and, after speaking to her privately, reported that she had identified “Manager” as the man who defiled her. The incident was then reported to the police. She produced the child’s birth certificate confirming that the victim was born on 12th April 2018.
PW3, Inspector Nasimiyu Misiko , the investigating officer, testified that on 19th May 2023, the complainant and her mother went to the police station to follow up on their earlier report. She interviewed the minor in a separate room, and the child stated that while on her way from school on 18th May 2023, she was called by the Appellant, known to her as “Manager,” who led her to a coffee plantation and defiled her under a mango tree. The officer took the child to Nyamira County Referral Hospital, where medical findings confirmed defilement and the presence of a sexually transmitted infection (STI). The Appellant was arrested at Riasakami Coffee Factory and taken for medical examination, which revealed that he had the same STI as the child.
PW4, Dennis Omwenga , a clinical officer at Nyamira County Referral Hospital, testified on behalf of the doctor who examined the victim. He stated that upon medical examination, the child had a freshly broken hymen, bruising, tenderness, and a yellowish vaginal discharge containing pus cells and spermatozoa, confirming penetration and infection. He produced the victim’s P3 form and treatment notes. The Appellant was also examined five days after the incident, and similar infection indicators were found. He stated that the matching STIs in both the victim and the Appellant medically linked him to the offence.
When placed on his defence, the Appellant, testifying as DW1 , denied the offence. He stated that he was the manager at Riasakami Tea Factory and had known the victim for over four years. On 18th May 2023, he was at work from 7:00 a.m. and remained there with his director, Peter Birai, and his brother, Shem, at the time of the alleged incident. He claimed that he was unwell with a swollen leg and did not leave the factory. He further testified that the complainant’s mother, Milka, visited the factory that day to borrow money from her grandfather, Shem. He alleged that he had disagreements with Marita, one of the witnesses, over a banana-planting dispute and suggested that the case was fabricated against him. The Appellant stated that he was arrested the following day and was not examined until 23rd May 2023, several days later. He also contended that the P3 form presented in court was not shown to him during his hospital examination.
In a nutshell, the prosecution relied on the testimony of the victim, her mother, the investigating officer, and medical evidence to prove defilement and link the Appellant to the offence through medical findings of a common STI. The defence, on the other hand, was a denial, supported by an alibi and a claim of malicious framing due to personal differences.
Analysis and Determination
Whether the offence of Defilement was proven by the Prosecution beyond reasonable doubt.
Section 8 of the Sexual Offences Act (the Act) outlines what constitutes the offence of defilement the attendant punishment based on the age of the minor/victims as follows: -
8. Defilement
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
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.
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 person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
……
In proving the offence of defilement, the Prosecution must present evidence showing the minority age of the victim; penetration and positive identification of the perpetrator. (See Dominic Kibet vs. R [2013] eKLR ).
In JOA vs. Republic (2019) eKLR the court set out the various ways in which the age of a minor can be proven thus: -
“It is equally trite law that proof of age or apparent age can be done by other means other than documentary evidence in the form of birth certificate, birth notification, baptismal card or the child Health or Immunization Card. In addition, proof of age can be by observation by the court, or testimony by the parent or guardian as long as the court believes that they are saying the truth and makes such observations on the apparent age of a victim.”
In the instant case, it was not disputed that the victim was aged 5 years at the time of the incident. Indeed her Birth Certificate (P.Exh1) indicates that she was born on 12 th April 2018. I am satisfied that age was proved to the required standard.
Turning to penetration Section 2 of the Act stipulates as follows: -
"penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
Penetration can also be proved through the sole testimony of the victim as provided under Section 124 of the Evidence Act which states that: -
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him.
Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
Penetration may also be proved through the evidence of a minor and corroborated by medical evidence. [See Denis Obiri vs. Republic, Criminal App No. 279 of 2011 and Jacob Odhiambo Omumbo vs. Republic, Criminal App. No 80 of 2008 (Kisumu),]
In this case, the victim testified as follows: -
“…Then the accused removed my clothes. I was dressed in uniform. I was also wearing a black skin tight undergarment. I was also wearing a white short. The accused was wearing a white shirt and a black long. Then he did to me ‘bad manners’. The Accused removed his thing and put it in my vagina. The Accused removed my shirt and short and he removed his trousers and did bad manners. I felt pain in my vagina. The accused did not wear any protection on his penis….”
I find that the victim vividly described her ordeal in clear language that undoubtedly points to the act of penetration. The fact that the victim stated that the accused did ‘bad manners’ to her and having also described the accused’s penis as his ‘thing’ leads this Court to conclude that there was penile penetration. Courts have severally accepted the use of euphemisms by victims of sexual offences to describe penetration. In Muganga Chilejo Saha vs. Republic [2017], eKLR the Court of Appeal referred to several cases and accepted the use of euphemisms by minors to describe penetration as follows: -
“Naturally, children who are victims of sexual abuse are likely to be devastated by the
experience, and given their innocence, they may feel shy, embarrassed, and ashamed to relate that experience before people and more so in a courtroom. If the trend in the decided cases is anything to go by, courts in this country have generally accepted the use of euphemisms like, “alinifanyia tabia mbaya” (IE V R, Kapenguria H.C Cr. Case No. 11 of 2016), “he pricked me with a thorn from the front part of this body.”, (Samuel Mwangi Kinyati v R, Nanyuki, HC.CR.A. NO. 48 of 2015); “he used his thing for peeing” (David Otieno Alex v R, HomaBay H.C Cr Ap. No. 44 of 2015); “he inserted his "dudu" into my "mapaja", (Joses Kaburu
v R, Meru H.C Cr. Case No. 196 of 2016), “he used his munyunyu”, (Thomas Alugha Ndegwa, Nbi H.C. Cr. Appeal No. 116 of 2011), as apt description of acts of defilement.”
I am satisfied that, even without considering any other evidence, the victim herein was sexually assaulted. I have also considered the medical evidence presented by PW4 who testified that the victim’s hymen was freshly broken and bruised and that she had yellowish discharge with spermatozoa cells seen on urinalysis. I have perused the P3 Form P.Exh (2) and Treatment Notes (P.Exh3) which also corroborate the evidence of the clinical officer and the victim. It was also apparent that the minor was infected with a Sexually Transmitted Infection which was also confirmed on the Appellant.
I find that there was compelling evidence pointing to the second ingredient of penetration and I am satisfied that the same was proved to the required standard.
I will now turn to consider the issue of identification of the Appellant as the perpetrator of the offence of defilement. It is trite that the evidence of identification, in any criminal trial, must be cogent and free from error before a court can arrive at a conviction. In the case of Kariuki Njiru & 7 others vs. Republic, [2001] eKLR the Court of Appeal restated the following principle:-
“Law on identification is well settled, and this court has from time to time said that the evidence relating to identification must be scrutinized, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error.”
In the present case, the victim was categorical that she was defiled by Appellant who she identified as a person well known to her as “Manager”. PW2 her testified that while at the hospital, the victim informed the doctor that a man called ‘Manager’ had defiled her. Indeed, the Appellant stated that he was a manager at a tea factory. I note that the incident occurred at around 1.00 p.m. when there was adequate lighting to enable the victim to see and identify the Appellant. The Appellant also confirmed that he had known the victim for four years. I am satisfied that the Appellant was positively identified as the victim’s assailant, more so in the face of the medical examination report (P.Exh4) which indicated that he was suffering from the same STI that the victim had been diagnosed with.
I have considered the defence presented by the Appellant and I note that it consisted of mere denial which did not oust the solid, credible and corroborated evidence presented by the prosecution witnesses.
In the final analysis I find that the trial court arrived at the correct verdict when it convicted the Appellant on the offence of defilement.
Whether the sentence meted was legal and proper.
It is trite that an appellate court should not interfere with the sentence passed by the trial court, except in certain circumstances, since sentence is the preserve of the trial court. In Wagude v. R (1983) KLR 569 , the Court of Appeal (Kneller, Hancox JJA. & Chesoni, Ag.JA.) explained the parameters of interference with sentence as follows: –
“The Court may interfere with the sentence only if it shown that it was manifestly excessive. In this instance two years’ Imprisonment for stealing by a person employed in the public service was not manifestly excessive.”
Section 8 (2) of the Act stipulates that the punishment for the offence of defilement for any minor aged 11 years and below is life imprisonment. I have considered the reasoning of the trial court in meting out the sentence. I note that the court considered the Pre-Sentencing Report, the Appellant’s mitigation and the aggravating circumstances surrounding the crime at hand which, according to the court, revealed that a heinous crime had been committed on a a child of tender years who was snatched of her innocence in an unprovoked manner. The trial court also considered the constitutionality of life sentences as held by the Court of Appeal in already decided cases and departed from the provisions of Section 8 (2) by passing 40 years’ imprisonment sentence.
My take on this is that the sentence of 40 years’ imprisonment was legal and proper. In light of recent determinations by the Supreme Court in reaffirming mandatory minimum sentences and mandatory sentences in Sexual Offences Act, it would be expected of this Court to enhance the Appellant’s sentence to life imprisonment as stipulated by the Act. However, since the Appellant was not issued with a Notice of Enhancement of sentence, this Court will restrain itself from proceeding in that direction.
I note that the trial court sentenced the Appellant on both the main and alternative counts. It is a well-established legal principle that when an accused person has been convicted of an offence in the main count, they cannot once again be convicted for the offence in the alternative count. This means that an accused person cannot be sentenced in the main and alternative counts. The alternative count only becomes applicable where the evidence is insufficient to convict on the main charge but may result in a conviction for the alternative count.
The import of the above is that a convict cannot serve sentences for both the main and alternative counts. I find that the trial court applied wrong legal principles in meting sentences for the main and alternative counts. I therefore allow the appeal on sentence only to the extent that the sentence in the alternative count is set aside for want of legality.
In the final analysis, I find that the Appeal on conviction lacks merit and is hereby dismissed. The sentence of 40 years is hereby upheld but with a rider that the same shall be computed to take into account any period that the Appellant spent in custody before his bond approval, in line with Section 333 (2) of the Criminal Procedure Code . The sentence of 10 years’ imprisonment for the alternative count is set aside.
Orders accordingly.
'
The Appellant herein was charged with the offence of Defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act. The particulars of the charge were that on 18 th 2023, at Charachani Sub-Location, Keera Location, Nyamira South Sub-County within Nyamira County, the Accused person unlawfully and intentionally caused his penis to penetrate the vagina of E.M.W. ( particulars withheld ), a child aged 5 years.
He also faced an alternative count of committing an indecent act with same child under the same Act. He pleaded not guilty to the charge and after a full trial in which the prosecution presented the evidence of four (4) witnesses, the trial court found him guilty on the main count of defilement and sentenced him to serve to serve 40 years’ imprisonment for the first count and 10 years’ imprisonment for the second count, which sentences were to run concurrently.
The Appeal
Aggrieved by trial court’s findings on conviction and sentence, the Appellant filed the instant appeal and listed 9 grounds of appeal in the Memorandum of Appeal. A summary of the said grounds are that the Prosecution did not prove its case to the required standard, presented contradictory and inconsistent evidence, conducted improper investigations and that the evidence was fabricated by the Prosecution witnesses in order to replace him at work with their brother. The Appellant also averred that his defence was not considered and that the sentence meted was harsh and excessive.
The appeal was canvassed by way of written submissions which I have considered. I find that the main issues for determination are whether the prosecution proved the offence of defilement beyond reasonable doubt and whether the sentence passed by the trial court was legal and proper.
A summary of the evidence presented before the trial court was as follows: -
PW1 E.M.W (particulars withheld) . the victim testified that she was on the material day on her way home from school at about 1.00 p.m. when she was accosted by the Appellant, who was well-known to her as “Manager”. She stated that the Appellant took her into the coffee farm where he defiled her and warned her not to tell anyone what had happened. The victim went home where she informed her mother (PW2) of her ordeal. She was later escorted to hospital for treatment and examination.
PW2, Milka Kerubo , the mother of the victim, testified that she was a student at Nyaegesa Polytechnic and that the victim, aged five, was her first child. She knew the accused as a manager at a local coffee factory. On 18th May 2023, when she returned home around 4:00 p.m., her daughter complained of pain in her private parts. Later, when her aunt Marita visited, they examined the child and observed what appeared to be sperms in her genital area. When the child’s grandfather returned and found her crying, he advised them to take her to hospital. At Nyamira County Referral Hospital, the doctor examined the child and, after speaking to her privately, reported that she had identified “Manager” as the man who defiled her. The incident was then reported to the police. She produced the child’s birth certificate confirming that the victim was born on 12th April 2018.
PW3, Inspector Nasimiyu Misiko , the investigating officer, testified that on 19th May 2023, the complainant and her mother went to the police station to follow up on their earlier report. She interviewed the minor in a separate room, and the child stated that while on her way from school on 18th May 2023, she was called by the Appellant, known to her as “Manager,” who led her to a coffee plantation and defiled her under a mango tree. The officer took the child to Nyamira County Referral Hospital, where medical findings confirmed defilement and the presence of a sexually transmitted infection (STI). The Appellant was arrested at Riasakami Coffee Factory and taken for medical examination, which revealed that he had the same STI as the child.
PW4, Dennis Omwenga , a clinical officer at Nyamira County Referral Hospital, testified on behalf of the doctor who examined the victim. He stated that upon medical examination, the child had a freshly broken hymen, bruising, tenderness, and a yellowish vaginal discharge containing pus cells and spermatozoa, confirming penetration and infection. He produced the victim’s P3 form and treatment notes. The Appellant was also examined five days after the incident, and similar infection indicators were found. He stated that the matching STIs in both the victim and the Appellant medically linked him to the offence.
When placed on his defence, the Appellant, testifying as DW1 , denied the offence. He stated that he was the manager at Riasakami Tea Factory and had known the victim for over four years. On 18th May 2023, he was at work from 7:00 a.m. and remained there with his director, Peter Birai, and his brother, Shem, at the time of the alleged incident. He claimed that he was unwell with a swollen leg and did not leave the factory. He further testified that the complainant’s mother, Milka, visited the factory that day to borrow money from her grandfather, Shem. He alleged that he had disagreements with Marita, one of the witnesses, over a banana-planting dispute and suggested that the case was fabricated against him. The Appellant stated that he was arrested the following day and was not examined until 23rd May 2023, several days later. He also contended that the P3 form presented in court was not shown to him during his hospital examination.
In a nutshell, the prosecution relied on the testimony of the victim, her mother, the investigating officer, and medical evidence to prove defilement and link the Appellant to the offence through medical findings of a common STI. The defence, on the other hand, was a denial, supported by an alibi and a claim of malicious framing due to personal differences.
Analysis and Determination
Whether the offence of Defilement was proven by the Prosecution beyond reasonable doubt.
Section 8 of the Sexual Offences Act (the Act) outlines what constitutes the offence of defilement the attendant punishment based on the age of the minor/victims as follows: -
8. Defilement
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
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.
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 person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
……
In proving the offence of defilement, the Prosecution must present evidence showing the minority age of the victim; penetration and positive identification of the perpetrator. (See Dominic Kibet vs. R [2013] eKLR ).
In JOA vs. Republic (2019) eKLR the court set out the various ways in which the age of a minor can be proven thus: -
“It is equally trite law that proof of age or apparent age can be done by other means other than documentary evidence in the form of birth certificate, birth notification, baptismal card or the child Health or Immunization Card. In addition, proof of age can be by observation by the court, or testimony by the parent or guardian as long as the court believes that they are saying the truth and makes such observations on the apparent age of a victim.”
In the instant case, it was not disputed that the victim was aged 5 years at the time of the incident. Indeed her Birth Certificate (P.Exh1) indicates that she was born on 12 th April 2018. I am satisfied that age was proved to the required standard.
Turning to penetration Section 2 of the Act stipulates as follows: -
"penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
Penetration can also be proved through the sole testimony of the victim as provided under Section 124 of the Evidence Act which states that: -
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him.
Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
Penetration may also be proved through the evidence of a minor and corroborated by medical evidence. [See Denis Obiri vs. Republic, Criminal App No. 279 of 2011 and Jacob Odhiambo Omumbo vs. Republic, Criminal App. No 80 of 2008 (Kisumu),]
In this case, the victim testified as follows: -
“…Then the accused removed my clothes. I was dressed in uniform. I was also wearing a black skin tight undergarment. I was also wearing a white short. The accused was wearing a white shirt and a black long. Then he did to me ‘bad manners’. The Accused removed his thing and put it in my vagina. The Accused removed my shirt and short and he removed his trousers and did bad manners. I felt pain in my vagina. The accused did not wear any protection on his penis….”
I find that the victim vividly described her ordeal in clear language that undoubtedly points to the act of penetration. The fact that the victim stated that the accused did ‘bad manners’ to her and having also described the accused’s penis as his ‘thing’ leads this Court to conclude that there was penile penetration. Courts have severally accepted the use of euphemisms by victims of sexual offences to describe penetration. In Muganga Chilejo Saha vs. Republic [2017], eKLR the Court of Appeal referred to several cases and accepted the use of euphemisms by minors to describe penetration as follows: -
“Naturally, children who are victims of sexual abuse are likely to be devastated by the
experience, and given their innocence, they may feel shy, embarrassed, and ashamed to relate that experience before people and more so in a courtroom. If the trend in the decided cases is anything to go by, courts in this country have generally accepted the use of euphemisms like, “alinifanyia tabia mbaya” (IE V R, Kapenguria H.C Cr. Case No. 11 of 2016), “he pricked me with a thorn from the front part of this body.”, (Samuel Mwangi Kinyati v R, Nanyuki, HC.CR.A. NO. 48 of 2015); “he used his thing for peeing” (David Otieno Alex v R, HomaBay H.C Cr Ap. No. 44 of 2015); “he inserted his "dudu" into my "mapaja", (Joses Kaburu
v R, Meru H.C Cr. Case No. 196 of 2016), “he used his munyunyu”, (Thomas Alugha Ndegwa, Nbi H.C. Cr. Appeal No. 116 of 2011), as apt description of acts of defilement.”
I am satisfied that, even without considering any other evidence, the victim herein was sexually assaulted. I have also considered the medical evidence presented by PW4 who testified that the victim’s hymen was freshly broken and bruised and that she had yellowish discharge with spermatozoa cells seen on urinalysis. I have perused the P3 Form P.Exh (2) and Treatment Notes (P.Exh3) which also corroborate the evidence of the clinical officer and the victim. It was also apparent that the minor was infected with a Sexually Transmitted Infection which was also confirmed on the Appellant.
I find that there was compelling evidence pointing to the second ingredient of penetration and I am satisfied that the same was proved to the required standard.
I will now turn to consider the issue of identification of the Appellant as the perpetrator of the offence of defilement. It is trite that the evidence of identification, in any criminal trial, must be cogent and free from error before a court can arrive at a conviction. In the case of Kariuki Njiru & 7 others vs. Republic, [2001] eKLR the Court of Appeal restated the following principle:-
“Law on identification is well settled, and this court has from time to time said that the evidence relating to identification must be scrutinized, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error.”
In the present case, the victim was categorical that she was defiled by Appellant who she identified as a person well known to her as “Manager”. PW2 her testified that while at the hospital, the victim informed the doctor that a man called ‘Manager’ had defiled her. Indeed, the Appellant stated that he was a manager at a tea factory. I note that the incident occurred at around 1.00 p.m. when there was adequate lighting to enable the victim to see and identify the Appellant. The Appellant also confirmed that he had known the victim for four years. I am satisfied that the Appellant was positively identified as the victim’s assailant, more so in the face of the medical examination report (P.Exh4) which indicated that he was suffering from the same STI that the victim had been diagnosed with.
I have considered the defence presented by the Appellant and I note that it consisted of mere denial which did not oust the solid, credible and corroborated evidence presented by the prosecution witnesses.
In the final analysis I find that the trial court arrived at the correct verdict when it convicted the Appellant on the offence of defilement.
Whether the sentence meted was legal and proper.
It is trite that an appellate court should not interfere with the sentence passed by the trial court, except in certain circumstances, since sentence is the preserve of the trial court. In Wagude v. R (1983) KLR 569 , the Court of Appeal (Kneller, Hancox JJA. & Chesoni, Ag.JA.) explained the parameters of interference with sentence as follows: –
“The Court may interfere with the sentence only if it shown that it was manifestly excessive. In this instance two years’ Imprisonment for stealing by a person employed in the public service was not manifestly excessive.”
Section 8 (2) of the Act stipulates that the punishment for the offence of defilement for any minor aged 11 years and below is life imprisonment. I have considered the reasoning of the trial court in meting out the sentence. I note that the court considered the Pre-Sentencing Report, the Appellant’s mitigation and the aggravating circumstances surrounding the crime at hand which, according to the court, revealed that a heinous crime had been committed on a a child of tender years who was snatched of her innocence in an unprovoked manner. The trial court also considered the constitutionality of life sentences as held by the Court of Appeal in already decided cases and departed from the provisions of Section 8 (2) by passing 40 years’ imprisonment sentence.
My take on this is that the sentence of 40 years’ imprisonment was legal and proper. In light of recent determinations by the Supreme Court in reaffirming mandatory minimum sentences and mandatory sentences in Sexual Offences Act, it would be expected of this Court to enhance the Appellant’s sentence to life imprisonment as stipulated by the Act. However, since the Appellant was not issued with a Notice of Enhancement of sentence, this Court will restrain itself from proceeding in that direction.
I note that the trial court sentenced the Appellant on both the main and alternative counts. It is a well-established legal principle that when an accused person has been convicted of an offence in the main count, they cannot once again be convicted for the offence in the alternative count. This means that an accused person cannot be sentenced in the main and alternative counts. The alternative count only becomes applicable where the evidence is insufficient to convict on the main charge but may result in a conviction for the alternative count.
The import of the above is that a convict cannot serve sentences for both the main and alternative counts. I find that the trial court applied wrong legal principles in meting sentences for the main and alternative counts. I therefore allow the appeal on sentence only to the extent that the sentence in the alternative count is set aside for want of legality.
In the final analysis, I find that the Appeal on conviction lacks merit and is hereby dismissed. The sentence of 40 years is hereby upheld but with a rider that the same shall be computed to take into account any period that the Appellant spent in custody before his bond approval, in line with Section 333 (2) of the Criminal Procedure Code . The sentence of 10 years’ imprisonment for the alternative count is set aside.
Orders accordingly.
'