1. The Appellant was convicted of the offence of defilement contrary to Section 8 (1) as read with Sub-section 8 (3) of the Sexual Offences Act No. 3 of 2006 and sentenced to 20 years’ imprisonment. The particulars of the charge were that on 17th February, 2023 at around 2115 hrs at Kasgei village Machember Sub-location, Murukutwo location in Marakwet East Sub-County within Elgeyo Marakwet County, he intentionally and unlawfully caused his penis to penetrate the vagina of AJM a child aged (14) years old.
2. In the alternative he was charged with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 17th day of February, 2023 at Kasgei village Machember Sub-location, Murukutwo location in Marakwet East Sub-County within Elgeyo Marakwet County, he intentionally and unlawfully committed an indecent act to AM a girl aged (14) years by touching her private parts namely vagina with his penis.
3. The Appellant pleaded not guilty and the matter proceeded to trial after which he was found guilty, convicted and sentenced to serve 20 years imprisonment. The Appellant, being dissatisfied with the decision of Hon. V. Karanja (PM) appealed against both conviction and sentence. The appeal is based on the following grounds of appeal:
1) That the Honourable Magistrate erred in law and fact because he failed to recognize the rights of the Appellant
2) That the Honourable Magistrate erred in law and fact by failing to inform the Appellant of his right to legal representation before trial.
3) That the Honourable Magistrate erred in law by proceeding with trial without affording the Appellant his right to proper legal representation.
4) That the Honourable Magistrate erred in law and fact by failing to consider the gravity of the offence that the Appellant was charged with.
Prosecution Evidence
4. The prosecution in support of its case called 5 (five) witnesses.
5. PW1 was the complainant. She testified that she resides within Chakor village and that she is a pupil at Chakor Primary School in class 8. She stated that she was born on 21/3/2009 and was 14 years and produced her Birth Certificate which was marked as PMF1. She testified that her mother is Agnes and her father is Matthew Maiyo. That she knows the accused person and identified him as the person before the Court. She stated that on 12/2/2023 -17/2/2023, she was going to her uncle’s home with her friend C who had other intentions and went with a boy and that the accused person came and told her to accompany him into a house at Chesogoch.
6. She testified that he then closed the door but she did not know the owner of the house. That he was wearing the same clothes he was wearing in Court. That the accused person removed his inner wear and also removed her pant and he put his penis into her vagina and he had sex with her. She further testified that the following day, he locked her inside the house. That she had not eaten the whole day previously and that the school register shows that she was absent from 13/3/2023 – 17/3/2023. She produced the school register which was marked as PMF2. She further stated that he came in the evening and brought bread and “quencher” and she told him that she was a student and needed to go to school. He had sex with her again and that she tried to scream.
7. She testified that the house was near a forest and that there is a lot of insecurity in their area and nobody came to her rescue. That he locked her in the house again and he came in the evening and had sex with her again. That her brothers and parents were looking for her and they found her on 17/2/2023 in the house and her brother looked them in on 16/2/2023 and he brought the Chief and Police Officers who arrested them and she was taken to Mogil Health Centre. She produced the treatment notes and the same were marked as PMF3. That she was issued with a P3 Form that was marked as PMF4. She then recorded her statement. upon cross and re- examination, she stated that the house is near the forest and the centre is on the opposite end. She stated that she found near her uncle’s home on 12/02/2023 and locked her in the house and it was on a Thursday.
8. PW2 was Agnes Maiyo, was the mother of the complainant. She testified that she resides in Tinyar village and that she is a farmer. She told the Court that she has 7 children and PW1 is her daughter and was born on 21/3/2009. She told the Court that she does not know the accused person before Court. She further testified that on 12/2/2023, at 2:30 pm she sent PW1 to buy soap but she never came back and she went and reported the matter to the chief. That PW1 had disappeared for 5 days and she started looking for her and that she never went to school and her brother too started looking for her. She stated that Gideon her son called and informed her that he had traced PW1 at Chesogoch and she went to the police and found her and that PW1 asked her to forgive her and she narrated to her what had transpired and that she took her to hospital for treatment. She stated that she did not know the accused. On cross-examination, she stated that Chesogoch is at the junction and that from the junction to Chesogoch is Kshs.20/= and that PW1 was found at the junction in a rental house.
9. PW3 was Gideon Chirchir, the complainant brother. He identified the accused person as the one before Court and stated that he was found with her sister. That on 12/2/2023, his sister disappeared from home and they started looking for her and on Wednesday, he heard rumours that she had been spotted at Chesogoch area, he went to Chesogoch area and found some students and one of them told them that his sister was in one of the rental houses and that she was with the accused. He told the Court that at 8:00 pm, he received a call that the accused person was in the house with his sister, they peeped but saw nothing, he then heard his sister voice and he called the Chief but he did not pick. He stated that he guarded the house until 8:00 am in the morning and he called the Chief who came with the police. He told the Court that the accused had disappeared for 5 days. On cross-examination, he stated that he was at Chesogoch and that Chesogoch and the junction is within the same centre. He told the Court that the accused was living at the Centre in a very dirty home and that he found the accused inside the house and that there were some trees in a forest and a few bushes within the rental house.
10. PW4 was Peter Koech Kaino a Nursing Officer in charge of Mogil Health Centre. He testified that the complainant came to the facility with a history of defilement and on examination, the vulva was normal, no tears or laceration, that she has numerous pus cell, blood cells, high vaginal swab was negative and that there was evidence of sexual contact continuous for 10 days and that he made a conclusion that there was sexual contact. He told the Court that he treated the victim and the assaulter and that there were sex sperm cells on the microscope. He then produced the treatment notes and the P3 form as PExhibit 3 and 4.
11. PW5 was No. 251014 PC Paul Maranga attached at Moogil Police Station. He stated that he is the investigating officer in the matter, that on 17/2/2023 he received a call from the OCs that he had minuted a case for him for investigations, it was a defilement case and the suspect had been arrested at Chesogoch area. He told the Court that they proceeded to the scene and they found the area Chief and Police Officers and they found the accused person and the complainant inside the house. He told the Court that they found an old mattress inside the house and that they charged the accused person for the offence. He produced PW1’s Birth Certificate as PExh1 and her attendance register as PExh2. On cross-examination, he stated that there was a Centre at the junction.
Defence Evidence
12. At the close of the prosecution case, the learned Magistrate found that the Appellant to have a case to answer. He was therefore placed on his defence He testified as (DW1). He gave an unsworn statement of defence and called no witnesses. He stated that he lives in Kasgei village and that he is a farmer. He told the Court that he was riding his motorcycle when he met the complainant and he spoke to her, that they spoke as a customer and her brother came and arrested him and took him to the police station and he was then taken to hospital. He told the court that his current wife was also a girlfriend to the complainant’s brother and that he had threatened. He was then charged for the offence. He stated that the mother had indicated that she had sent the girl for sugar which is very far from the complainant’s place to theirs.
Submissions
13. The Appeal was canvassed by way of written submissions and both parties filed their respective submissions.
Appellant’s Submissions
14. Counsel Seneti Oburu on behalf of the Appellant in his submissions dated 14th December 2024 submitted that the learned Magistrate erred in law and in fact in taking plea without informing the appellant of his rights of legal representation as provided under Article 50(2)(b)(g)&(h) of Constitution, considering that the charges that the appellant was facing were serious and grave thereby attracting a high penalty. That as a result the appellant remained unrepresented throughout the trial and it is on this basis the Appellant avers that he lost this case because of failing to get legal assistance.
15. That under the said Article 50(2)(b)(g) &(h)of the Constitution it is provided that before the proceedings commence, the court has the duty to inform the appellant of his/her right to choose an advocate of his choice and that the appellant must be informed of this right promptly by the court. Counsel maintained that this aspect is indeed critical since, the appellant upon being informed promptly can make an informed decision whether or not to procure the services of an advocate. Counsel further submitted that the offence was not proved to the required standard and that the Appellant's defence was not considered and that the sentence was harsh and excessive.
16. Counsel relied on the case of Crispine Julius Chacha Appeal E027/2022 KEHC 16370 (KLR). That in this case, the appellant was convicted in CRC NO. E27/2022, and the appellant lodged an appeal in which one of the grounds was that the appellant was not informed of his constitutional right of legal representation as required by the provisions of Article 50(2) (b)(g) &(h). That on this ground, the trial court proceedings were declared a nullity and the sentence was set aside. Counsel also relied on Chacha Mwita versus the Republic Criminal Appeal No. 33/2019, Petition 5 of 2015 R Vs Karisa Chongo and 2 others and Joseph Kiema Vs Republic.
17. Counsel faulted the trial Magistrate for failing to consider the fact that the victim (PW1) who was 14 years old did not raise any alarm when the alleged offence of defilement took place. PW1 told the court that the appellant removed his inner wear and then proceeded to remove the victim's pants without any sign of resistance. According to Counsel (PW1)’s testimony creates doubts if the alleged defilement ever took place.
18. Counsel further faulted the trial Magistrate for failing to make a finding that it was the victim (PW1) who was on the wrong since according to the testimony of PW2 her mother, she stated that when she found her daughter PW2, the complainant sought for forgiveness from her mother. According to Counsel, this is an aspect where a girl of 14 years is blaming herself and seeks for forgiveness and it goes to suggest that she was the one who went out to look for the appellant by luring them.
19. Counsel also faulted the trial Magistrate to consider the evidence of PW3 (Gideon), brother to the victim who told the court that when he came to the alleged house where the victim was locked up, he peeped but saw nothing. Counsel urged that this evidence creates doubt if at all the victim (PW1) was ever locked by the Appellant inside the alleged house. In conclusion, Counsel submitted that the trial Magistrate failed to apply both the facts and the law to make a finding that the prosecution failed to prove their case beyond reasonable doubt considering the above areas of contradictions that he has raised.
The Respondent’s Submissions
20. Regarding the elements of the offence, Prosecution Counsel Calvin Kirui in his submissions dated 7th June 2024 cited Section 8(1) and (3) of the Sexual Offences Act. Counsel submitted that the ingredients of the offence of defilement were set out in the case of George Opondo Olunga v Republic [2016] eKLR as identification or recognition of the offender, penetration and the age of the victim. Counsel added that prosecution is under a duty to establish or prove all the above elements of defilement beyond reasonable doubt and that duty or burden of proof does not shift to the accused person who is under no duty to adduce or challenge evidence adduced by the prosecution witnesses. He cited the case of Watuku v Republic (Criminal Appeal 08 of 2020) [2022] KEHC 4 (KLR) in support of this submission.
21. On the issue of identification of the perpetrator, Counsel submitted that PW1 testified that she met the Appellant who convinced her to go with him to his house, she stayed in the Appellant's house for 5 days. Counsel further submitted that in evaluating the identification of an accused the court in Mungania & 2 others v Republic & 2 others (Criminal Appeal 21 of 2020 & E003 &E068 of 2021 (Consolidated)) [2022] KEHC 167 (KLR held that one of the factors to be evaluated evaluated is the period of time within which the witness did actually observe the perpetrator. Counsel that PW1 stayed in the appellant’s house for a period of 5 days. He submitted that the evidence of the complainant which was corroborated by that of her brother PW3 was that on the last day, he came and found her and the appellant in the house and that he closed the door and guarded it until the chief arrived and that eventually both the Appellant and the complainant were arrested from the Appellant's house. Counsel submitted that the evidence of the two witnesses corroborated each other and therefore identification was free from error.
22. Regarding penetration, Counsel submitted that “penetration" is defined under Section 2 of the Sexual Offences Act to mean "the partial or complete insertion of the genital organs of a person into the genital organs of another person", that the complainant testified that the Appellant led her into her house where she stayed for five days and during these five days, they had sex severally. Counsel urged that the question is whether that evidence requires corroboration. Counsel then cited Section 124 of the Evidence Act and submitted the evidence of the complainant on the fact of her being penetrated was corroborated by that of the Clinical Officer (PW4) who stated that upon examining the complainant, he noted numerous pus cells, blood cells and the laboratory results showed sperm cells which in his expert opinion was evidence of sexual contact continuous for 10 days. Counsel submitted that these findings were noted in the P3 form and the treatments notes which were produced as exhibits, which also confirmed penetration. That this evidence proved beyond reasonable doubt that there was penetration as contemplated by the Act.
23. Counsel further submitted that the investigating officer testified as PW5 and produced the complainant’s Birth Certificate as PExh1. That the said Birth Certificate indicates that the complainant was born on 21/03/2009 and the incident herein happened on 17/02/2023. That this means that the Complaint was 14 years old as at the time of the incident. Counsel urged that the Appellant did not challenge this evidence and no contrary evidence was produced and as such, the age of the complainant was proved beyond any reasonable doubt.
24. On whether the appeal is merited, Counsel submitted that the Appellant raised six grounds of Appeal and on the 1st ground, the Appellant alleges that the trial court failed to accord him to a fair trial. That however the record shows that the principles of fair hearing were adhered to.
25. Regarding the 2nd and 3rd ground, Counsel submitted that the same relates to the right to fair hearing as regards to the right to legal representation. On this ground, Counsel cited the case of Owidi v Republic (Criminal Appeal E054 of 2022) [2023] KEHC 21977 (KLR) (23) August 2023) (Judgment) Wendoh J which he states is persuasive. That in the said case, the court stated as follows on the provisions of article 50 of the Constitution cited by the Counsel for the appellant;
'Article 50(2)(h) requires that an accused be informed of the right to be assigned counsel at the State expense if substantial injustice would otherwise result. He is also supposed to be informed of this right promptly. From the record, the appellant was not informed of the said right. However, the said right is not absolute. One has to demonstrate that substantial injustice would result to him if the right is not complied with".
26. Counsel therefore submitted that as held herein above, the right to representation is not absolute and that the Appellant throughout the trial did not manifest any reason why injustice would ensue. Counsel further submitted that the Appellant cross examined all the prosecution witnesses, he defended himself in a manner that he saw fit. According to Counsel it is therefore evident that the principles of fair hearing were adhered.
27. Regarding the 4th ground, Counsel submitted that the Appellant contends that the trial court failed to consider the gravity of the offence that he was charged with. Counsel further submitted that offence clearly states that upon being convicted, is liable to imprisonment for a tern not less the 20 years, the trial court convicted the Appellant and sentenced him to serve 20 years in prison. That in this respect the trial court sentenced the Appellant to the minimum prescribed sentenced and in this regard, the court considered the gravity of the offence, which was also highlighted by the prosecution in their sentencing submissions.
28. In the end, Counsel submitted that the prosecution availed overwhelming, credible and admissible evidence proving each of the elements of the offence, the prosecution successfully proved beyond reasonable doubt that the Accused defiled the complainant and the court, after careful consideration of the prosecution evidence, the defence, the Appellant's mitigation and the prosecution's sentencing submissions rightfully exercised its discretion and sentenced the Appellant accordingly.
Determination
29. As a first Appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses (See Okeno vs. Republic [1972] E.A 32).
30. In considering the grounds of appeal filed as well as the submissions made, it is my considered opinion that the issues:
a) Whether the appellant was not accorded a fair trial in light of the fact that he was not appraised of his right to legal representation
b) Whether the charge of defilement was proved beyond reasonable doubt.
c) Whether the sentence of 20 years’ imprisonment was proper.
31. Whereas I note that the main and primary ground of appeal is the issue of legal representation and that the issue on whether the offence was proved beyond reasonable doubt, is more or less peripheral, I will nonetheless determine this issue first before proceeding to the main issue and conclude with the issue of the sentence.
32. The Appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act which provide as follows:
8(1) “a person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(3) A person who commits an offence of defilement with a child aged between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term not less than 20 years.
33. The Prosecution must prove 3 ingredients, namely, the “age” of the victim (must be a minor), “penetration” and proper “identification” of the perpetrator (see George Opondo Olunga vs. Republic [2016] eKLR
34. The importance of proving “age” was reiterated in the Court of Appeal case of Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010, in which the following was stated:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
35. In respect to the manner of proving “age”, in the case of Francis Omuroni v Uganda Court of Appeal; Criminal Appeal No. 2 of 2000, the following was stated:
“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense .......”
36. In respect to “penetration”, Section 2 of the Sexual Offences Act defines the act as follows:
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
37. On the evidence of a single witness Section 124 of the Evidence Act provides guidance. as follows:
“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.”
38. On the issue of identification, the Court of Appeal in the case of Kariuki Njiru & 7 others vs Republic, [2001] eKLR 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.”
39. Further, in the case of Reuben Tabu Anjononi & 2 Others v Republic [1980] eKLR, the Court of Appeal guided as follows:
“……. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.
40. Having considered the evidence in its totality, I find that the age of the complainant was sufficiently proved by way of the birth certificate whose contents were not in the least controverted, the appellant in his evidence confirmed that he did meet with complainant and spoke to her. In further noting that her evidence that they were together with the appellant for 5 days before they were arrested was not at all challenged in any of its material particulars by the appellant, I am satisfied that the complainant was with the appellant long enough to be able to appropriately identify him. Lastly, the doctor’s evidence confirming that the complainant was defiled was also not challenged and/or controverted by the appellant. In light of this evidence, I am satisfied that the charge of defilement was proved as against the appellant beyond reasonable doubt.
41. On the main issue regarding the legal representation of the appellant, the relevant provisions of Article 50 of the Constitution provides as follows:-
50(2) Every accused person has the right to a fair trial, which includes the right—
(b) to be informed of the charge, with sufficient detail to answer it
(g)to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
42. In the case of David Macharia Njoroge v R (2011) eKLR the Court of Appeal held thus on this issue;
“State funded legal representation is a right in certain instances. Article 50 (1) provides that an accused shall have an advocate assigned to him by the State and at state expense. Substantial injustice is not defined under the Constitution, however, provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2 (6). Therefore, provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory.
We are of the considered view that in addition to situations where substantial injustice would otherwise result, persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense. We would not go so far as to suggest that every accused person convicted of a capital offence since the coming into effect of the new Constitution would automatically be entitled to a re-trial where no such legal representation was provided.”
43. In Karisa Chengo & 2 Others vs. Republic Cr. Nos. 44, 45 & 76 of 2014, again the Court of Appeal stated thus;
“It is obvious that the right to legal representation is essential to the realization of a fair trial more so in capital offences. The Constitution is crystal clear that an accused person is entitled to legal representation at the State’s expense where substantial injustice would otherwise be occasioned in the absence of such legal representation. This court in the David Njoroge Macharia case (supra) seems to have expanded the constitutional requirement that legal representation be provided at state expense in cases where substantial injustice might otherwise result and to include all situations where an accused person is charged with an offence whose penalty is death. This may be misunderstood to mean that all persons, regardless of their economic circumstances, would be entitled, as of right, to legal representation at state expense if they are charged with an offence whose penalty is death. However, substantial injustice only arises in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state obligation to provide legal representation arise.”
44. The above cited cases, the consensus is that the Constitutional provision for the provision for legal representation at the State’s expense is as of right where loss of life is the ultimate penalty upon conviction. However, it has been noted in the case of David Macharia Njoroge v R (2011) eKLR that what amounts to substantial injustice is however not defined in the Constitution. The question then is whether the prescribed sentence under Section 8(3) of the Sexual offences act amounts to substantial injustice to make it a mandatory requirement that the trial court must inform an appellant of their right to legal representation and having so informed him avail to him the same at the State’s expense. I think not and in this regard and also considering that the emphasis in the two cited cases emphasised on loss of life as being what would be considered to amount to substantial injustice, I am persuaded by the finding of Wendoh J in the hereinabove cited case of Owidi v Republic (Criminal Appeal E054 of 2022) [2023] KEHC 21977 (KLR) (23) August 2023) (Judgment) the said right is not absolute and that one has to demonstrate that substantial injustice would result to him if the right is not complied with.
45. I note from the record of proceedings that the rights of the accused to appellant as provided under article 50(2) of the Constitution were accorded to the appellant throughout the trial. The appellant proceeded in a language of his choice being Kiswahili. The charge and all the particulars thereof were explained to him and he pleaded to the same. Witness statements were supplied to the appellant. At some point the appellant exercised his right to object to an application for an adjournment made by the prosecution as a result of which the Hon Magistrate gave the prosecution its last adjournment. The appellant did cross examine all the witnesses as he deemed appropriate and at the close of the prosecution case the ruling was delivered in open Court. The provisions of Section 211 of the Criminal Procedure Code was then explained and the appellant gave an unsworn statement of defence and closed his case.
46. In considering the above, I am satisfied that the appellant was very well able to sufficiently conduct the case and defend the charges levelled against him throughout the trial and that there has been no substantial injustice occasioned to him at all and further that he has not at all demonstrated that substantial injustice has been occasioned to him as a result of not being provided with legal representation at the state’s expense. Over and above, I am not persuaded that a sentence of 20 years’ imprisonment amounts to substantial injustice and more particularly where the rights of an appellant to a fair trial have been upheld throughout the trial. In this regard, I find that the Appeal on this ground lacks merit and the same is accordingly dismissed and the conviction by the Hon Magistrate is accordingly upheld.
47. On the sentence, the court notes that appellant was sentenced to serve 20 years’ imprisonment. The Appellant argued that the sentence is manifestly excessive in the circumstances of this case. In considering this ground, the decision of the Court of Appeal in the case of Bernard Kimani Gacheru v Republic [2002] eKLR is relevant. Therein the court stated as follows;
“It is now settled Law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate Court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial Court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the appellate Court feels that the sentence is heavy and that the appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court on sentence unless, anyone of the matters already states is shown to exist.”
48. Further, Section 8(3) of the Sexual Offences Act which prescribes the appropriate sentence upon conviction provides as follows;
(3) A person who commits an offence of defilement with a child aged between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term not less than 20 years.
49. In Petition No. E018 of 2023 Republic v Joshua Gichuki Mwangi, the Supreme Court made the following finding on the issue of the minimum mandatory sentences as provided under the Sexual Offences Act;
“…..In any case, 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.
50. The said section of the Sexual Offences Act having not been declared unconstitutional since the pronouncement of the Supreme Court in the above judgement it remains a legal, lawful and valid sentence. The Birth Certificate produced as PExh1 was unchallenged and its evidence therefore is uncontroverted. It places the minor at 14 years of age at the time of the commission of the offence. The said Section 8(3) of the Sexual Offences Act provides for a mandatory minimum sentence of 20 years Imprisonment in a conviction of a defilement of a minor aged between 12 and 15 years.
51. I note that it is the minimum sentence that the Hon Magistrate sentenced the appellant to. In this respect, I am satisfied that the sentence meted out was lawful and legal and therefore valid and proper. The same is accordingly upheld. Further, in noting that the appellant was in remand custody throughout the trial and the said sentence did not factor in the period that the appellant spent in pre-trial custody as provided under mandatory provisions of Section 333(2) of the Criminal Procedure Code, I now hereby direct that the sentence is to run from the date that the appellant was arraigned in court.
52. Right of Appeal 14 days
Read Dated and signed at ITEN on 3rd April 2025
2. In the alternative he was charged with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 17th day of February, 2023 at Kasgei village Machember Sub-location, Murukutwo location in Marakwet East Sub-County within Elgeyo Marakwet County, he intentionally and unlawfully committed an indecent act to AM a girl aged (14) years by touching her private parts namely vagina with his penis.
3. The Appellant pleaded not guilty and the matter proceeded to trial after which he was found guilty, convicted and sentenced to serve 20 years imprisonment. The Appellant, being dissatisfied with the decision of Hon. V. Karanja (PM) appealed against both conviction and sentence. The appeal is based on the following grounds of appeal:
1) That the Honourable Magistrate erred in law and fact because he failed to recognize the rights of the Appellant
2) That the Honourable Magistrate erred in law and fact by failing to inform the Appellant of his right to legal representation before trial.
3) That the Honourable Magistrate erred in law by proceeding with trial without affording the Appellant his right to proper legal representation.
4) That the Honourable Magistrate erred in law and fact by failing to consider the gravity of the offence that the Appellant was charged with.
Prosecution Evidence
4. The prosecution in support of its case called 5 (five) witnesses.
5. PW1 was the complainant. She testified that she resides within Chakor village and that she is a pupil at Chakor Primary School in class 8. She stated that she was born on 21/3/2009 and was 14 years and produced her Birth Certificate which was marked as PMF1. She testified that her mother is Agnes and her father is Matthew Maiyo. That she knows the accused person and identified him as the person before the Court. She stated that on 12/2/2023 -17/2/2023, she was going to her uncle’s home with her friend C who had other intentions and went with a boy and that the accused person came and told her to accompany him into a house at Chesogoch.
6. She testified that he then closed the door but she did not know the owner of the house. That he was wearing the same clothes he was wearing in Court. That the accused person removed his inner wear and also removed her pant and he put his penis into her vagina and he had sex with her. She further testified that the following day, he locked her inside the house. That she had not eaten the whole day previously and that the school register shows that she was absent from 13/3/2023 – 17/3/2023. She produced the school register which was marked as PMF2. She further stated that he came in the evening and brought bread and “quencher” and she told him that she was a student and needed to go to school. He had sex with her again and that she tried to scream.
7. She testified that the house was near a forest and that there is a lot of insecurity in their area and nobody came to her rescue. That he locked her in the house again and he came in the evening and had sex with her again. That her brothers and parents were looking for her and they found her on 17/2/2023 in the house and her brother looked them in on 16/2/2023 and he brought the Chief and Police Officers who arrested them and she was taken to Mogil Health Centre. She produced the treatment notes and the same were marked as PMF3. That she was issued with a P3 Form that was marked as PMF4. She then recorded her statement. upon cross and re- examination, she stated that the house is near the forest and the centre is on the opposite end. She stated that she found near her uncle’s home on 12/02/2023 and locked her in the house and it was on a Thursday.
8. PW2 was Agnes Maiyo, was the mother of the complainant. She testified that she resides in Tinyar village and that she is a farmer. She told the Court that she has 7 children and PW1 is her daughter and was born on 21/3/2009. She told the Court that she does not know the accused person before Court. She further testified that on 12/2/2023, at 2:30 pm she sent PW1 to buy soap but she never came back and she went and reported the matter to the chief. That PW1 had disappeared for 5 days and she started looking for her and that she never went to school and her brother too started looking for her. She stated that Gideon her son called and informed her that he had traced PW1 at Chesogoch and she went to the police and found her and that PW1 asked her to forgive her and she narrated to her what had transpired and that she took her to hospital for treatment. She stated that she did not know the accused. On cross-examination, she stated that Chesogoch is at the junction and that from the junction to Chesogoch is Kshs.20/= and that PW1 was found at the junction in a rental house.
9. PW3 was Gideon Chirchir, the complainant brother. He identified the accused person as the one before Court and stated that he was found with her sister. That on 12/2/2023, his sister disappeared from home and they started looking for her and on Wednesday, he heard rumours that she had been spotted at Chesogoch area, he went to Chesogoch area and found some students and one of them told them that his sister was in one of the rental houses and that she was with the accused. He told the Court that at 8:00 pm, he received a call that the accused person was in the house with his sister, they peeped but saw nothing, he then heard his sister voice and he called the Chief but he did not pick. He stated that he guarded the house until 8:00 am in the morning and he called the Chief who came with the police. He told the Court that the accused had disappeared for 5 days. On cross-examination, he stated that he was at Chesogoch and that Chesogoch and the junction is within the same centre. He told the Court that the accused was living at the Centre in a very dirty home and that he found the accused inside the house and that there were some trees in a forest and a few bushes within the rental house.
10. PW4 was Peter Koech Kaino a Nursing Officer in charge of Mogil Health Centre. He testified that the complainant came to the facility with a history of defilement and on examination, the vulva was normal, no tears or laceration, that she has numerous pus cell, blood cells, high vaginal swab was negative and that there was evidence of sexual contact continuous for 10 days and that he made a conclusion that there was sexual contact. He told the Court that he treated the victim and the assaulter and that there were sex sperm cells on the microscope. He then produced the treatment notes and the P3 form as PExhibit 3 and 4.
11. PW5 was No. 251014 PC Paul Maranga attached at Moogil Police Station. He stated that he is the investigating officer in the matter, that on 17/2/2023 he received a call from the OCs that he had minuted a case for him for investigations, it was a defilement case and the suspect had been arrested at Chesogoch area. He told the Court that they proceeded to the scene and they found the area Chief and Police Officers and they found the accused person and the complainant inside the house. He told the Court that they found an old mattress inside the house and that they charged the accused person for the offence. He produced PW1’s Birth Certificate as PExh1 and her attendance register as PExh2. On cross-examination, he stated that there was a Centre at the junction.
Defence Evidence
12. At the close of the prosecution case, the learned Magistrate found that the Appellant to have a case to answer. He was therefore placed on his defence He testified as (DW1). He gave an unsworn statement of defence and called no witnesses. He stated that he lives in Kasgei village and that he is a farmer. He told the Court that he was riding his motorcycle when he met the complainant and he spoke to her, that they spoke as a customer and her brother came and arrested him and took him to the police station and he was then taken to hospital. He told the court that his current wife was also a girlfriend to the complainant’s brother and that he had threatened. He was then charged for the offence. He stated that the mother had indicated that she had sent the girl for sugar which is very far from the complainant’s place to theirs.
Submissions
13. The Appeal was canvassed by way of written submissions and both parties filed their respective submissions.
Appellant’s Submissions
14. Counsel Seneti Oburu on behalf of the Appellant in his submissions dated 14th December 2024 submitted that the learned Magistrate erred in law and in fact in taking plea without informing the appellant of his rights of legal representation as provided under Article 50(2)(b)(g)&(h) of Constitution, considering that the charges that the appellant was facing were serious and grave thereby attracting a high penalty. That as a result the appellant remained unrepresented throughout the trial and it is on this basis the Appellant avers that he lost this case because of failing to get legal assistance.
15. That under the said Article 50(2)(b)(g) &(h)of the Constitution it is provided that before the proceedings commence, the court has the duty to inform the appellant of his/her right to choose an advocate of his choice and that the appellant must be informed of this right promptly by the court. Counsel maintained that this aspect is indeed critical since, the appellant upon being informed promptly can make an informed decision whether or not to procure the services of an advocate. Counsel further submitted that the offence was not proved to the required standard and that the Appellant's defence was not considered and that the sentence was harsh and excessive.
16. Counsel relied on the case of Crispine Julius Chacha Appeal E027/2022 KEHC 16370 (KLR). That in this case, the appellant was convicted in CRC NO. E27/2022, and the appellant lodged an appeal in which one of the grounds was that the appellant was not informed of his constitutional right of legal representation as required by the provisions of Article 50(2) (b)(g) &(h). That on this ground, the trial court proceedings were declared a nullity and the sentence was set aside. Counsel also relied on Chacha Mwita versus the Republic Criminal Appeal No. 33/2019, Petition 5 of 2015 R Vs Karisa Chongo and 2 others and Joseph Kiema Vs Republic.
17. Counsel faulted the trial Magistrate for failing to consider the fact that the victim (PW1) who was 14 years old did not raise any alarm when the alleged offence of defilement took place. PW1 told the court that the appellant removed his inner wear and then proceeded to remove the victim's pants without any sign of resistance. According to Counsel (PW1)’s testimony creates doubts if the alleged defilement ever took place.
18. Counsel further faulted the trial Magistrate for failing to make a finding that it was the victim (PW1) who was on the wrong since according to the testimony of PW2 her mother, she stated that when she found her daughter PW2, the complainant sought for forgiveness from her mother. According to Counsel, this is an aspect where a girl of 14 years is blaming herself and seeks for forgiveness and it goes to suggest that she was the one who went out to look for the appellant by luring them.
19. Counsel also faulted the trial Magistrate to consider the evidence of PW3 (Gideon), brother to the victim who told the court that when he came to the alleged house where the victim was locked up, he peeped but saw nothing. Counsel urged that this evidence creates doubt if at all the victim (PW1) was ever locked by the Appellant inside the alleged house. In conclusion, Counsel submitted that the trial Magistrate failed to apply both the facts and the law to make a finding that the prosecution failed to prove their case beyond reasonable doubt considering the above areas of contradictions that he has raised.
The Respondent’s Submissions
20. Regarding the elements of the offence, Prosecution Counsel Calvin Kirui in his submissions dated 7th June 2024 cited Section 8(1) and (3) of the Sexual Offences Act. Counsel submitted that the ingredients of the offence of defilement were set out in the case of George Opondo Olunga v Republic [2016] eKLR as identification or recognition of the offender, penetration and the age of the victim. Counsel added that prosecution is under a duty to establish or prove all the above elements of defilement beyond reasonable doubt and that duty or burden of proof does not shift to the accused person who is under no duty to adduce or challenge evidence adduced by the prosecution witnesses. He cited the case of Watuku v Republic (Criminal Appeal 08 of 2020) [2022] KEHC 4 (KLR) in support of this submission.
21. On the issue of identification of the perpetrator, Counsel submitted that PW1 testified that she met the Appellant who convinced her to go with him to his house, she stayed in the Appellant's house for 5 days. Counsel further submitted that in evaluating the identification of an accused the court in Mungania & 2 others v Republic & 2 others (Criminal Appeal 21 of 2020 & E003 &E068 of 2021 (Consolidated)) [2022] KEHC 167 (KLR held that one of the factors to be evaluated evaluated is the period of time within which the witness did actually observe the perpetrator. Counsel that PW1 stayed in the appellant’s house for a period of 5 days. He submitted that the evidence of the complainant which was corroborated by that of her brother PW3 was that on the last day, he came and found her and the appellant in the house and that he closed the door and guarded it until the chief arrived and that eventually both the Appellant and the complainant were arrested from the Appellant's house. Counsel submitted that the evidence of the two witnesses corroborated each other and therefore identification was free from error.
22. Regarding penetration, Counsel submitted that “penetration" is defined under Section 2 of the Sexual Offences Act to mean "the partial or complete insertion of the genital organs of a person into the genital organs of another person", that the complainant testified that the Appellant led her into her house where she stayed for five days and during these five days, they had sex severally. Counsel urged that the question is whether that evidence requires corroboration. Counsel then cited Section 124 of the Evidence Act and submitted the evidence of the complainant on the fact of her being penetrated was corroborated by that of the Clinical Officer (PW4) who stated that upon examining the complainant, he noted numerous pus cells, blood cells and the laboratory results showed sperm cells which in his expert opinion was evidence of sexual contact continuous for 10 days. Counsel submitted that these findings were noted in the P3 form and the treatments notes which were produced as exhibits, which also confirmed penetration. That this evidence proved beyond reasonable doubt that there was penetration as contemplated by the Act.
23. Counsel further submitted that the investigating officer testified as PW5 and produced the complainant’s Birth Certificate as PExh1. That the said Birth Certificate indicates that the complainant was born on 21/03/2009 and the incident herein happened on 17/02/2023. That this means that the Complaint was 14 years old as at the time of the incident. Counsel urged that the Appellant did not challenge this evidence and no contrary evidence was produced and as such, the age of the complainant was proved beyond any reasonable doubt.
24. On whether the appeal is merited, Counsel submitted that the Appellant raised six grounds of Appeal and on the 1st ground, the Appellant alleges that the trial court failed to accord him to a fair trial. That however the record shows that the principles of fair hearing were adhered to.
25. Regarding the 2nd and 3rd ground, Counsel submitted that the same relates to the right to fair hearing as regards to the right to legal representation. On this ground, Counsel cited the case of Owidi v Republic (Criminal Appeal E054 of 2022) [2023] KEHC 21977 (KLR) (23) August 2023) (Judgment) Wendoh J which he states is persuasive. That in the said case, the court stated as follows on the provisions of article 50 of the Constitution cited by the Counsel for the appellant;
'Article 50(2)(h) requires that an accused be informed of the right to be assigned counsel at the State expense if substantial injustice would otherwise result. He is also supposed to be informed of this right promptly. From the record, the appellant was not informed of the said right. However, the said right is not absolute. One has to demonstrate that substantial injustice would result to him if the right is not complied with".
26. Counsel therefore submitted that as held herein above, the right to representation is not absolute and that the Appellant throughout the trial did not manifest any reason why injustice would ensue. Counsel further submitted that the Appellant cross examined all the prosecution witnesses, he defended himself in a manner that he saw fit. According to Counsel it is therefore evident that the principles of fair hearing were adhered.
27. Regarding the 4th ground, Counsel submitted that the Appellant contends that the trial court failed to consider the gravity of the offence that he was charged with. Counsel further submitted that offence clearly states that upon being convicted, is liable to imprisonment for a tern not less the 20 years, the trial court convicted the Appellant and sentenced him to serve 20 years in prison. That in this respect the trial court sentenced the Appellant to the minimum prescribed sentenced and in this regard, the court considered the gravity of the offence, which was also highlighted by the prosecution in their sentencing submissions.
28. In the end, Counsel submitted that the prosecution availed overwhelming, credible and admissible evidence proving each of the elements of the offence, the prosecution successfully proved beyond reasonable doubt that the Accused defiled the complainant and the court, after careful consideration of the prosecution evidence, the defence, the Appellant's mitigation and the prosecution's sentencing submissions rightfully exercised its discretion and sentenced the Appellant accordingly.
Determination
29. As a first Appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses (See Okeno vs. Republic [1972] E.A 32).
30. In considering the grounds of appeal filed as well as the submissions made, it is my considered opinion that the issues:
a) Whether the appellant was not accorded a fair trial in light of the fact that he was not appraised of his right to legal representation
b) Whether the charge of defilement was proved beyond reasonable doubt.
c) Whether the sentence of 20 years’ imprisonment was proper.
31. Whereas I note that the main and primary ground of appeal is the issue of legal representation and that the issue on whether the offence was proved beyond reasonable doubt, is more or less peripheral, I will nonetheless determine this issue first before proceeding to the main issue and conclude with the issue of the sentence.
32. The Appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act which provide as follows:
8(1) “a person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(3) A person who commits an offence of defilement with a child aged between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term not less than 20 years.
33. The Prosecution must prove 3 ingredients, namely, the “age” of the victim (must be a minor), “penetration” and proper “identification” of the perpetrator (see George Opondo Olunga vs. Republic [2016] eKLR
34. The importance of proving “age” was reiterated in the Court of Appeal case of Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010, in which the following was stated:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
35. In respect to the manner of proving “age”, in the case of Francis Omuroni v Uganda Court of Appeal; Criminal Appeal No. 2 of 2000, the following was stated:
“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense .......”
36. In respect to “penetration”, Section 2 of the Sexual Offences Act defines the act as follows:
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
37. On the evidence of a single witness Section 124 of the Evidence Act provides guidance. as follows:
“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.”
38. On the issue of identification, the Court of Appeal in the case of Kariuki Njiru & 7 others vs Republic, [2001] eKLR 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.”
39. Further, in the case of Reuben Tabu Anjononi & 2 Others v Republic [1980] eKLR, the Court of Appeal guided as follows:
“……. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.
40. Having considered the evidence in its totality, I find that the age of the complainant was sufficiently proved by way of the birth certificate whose contents were not in the least controverted, the appellant in his evidence confirmed that he did meet with complainant and spoke to her. In further noting that her evidence that they were together with the appellant for 5 days before they were arrested was not at all challenged in any of its material particulars by the appellant, I am satisfied that the complainant was with the appellant long enough to be able to appropriately identify him. Lastly, the doctor’s evidence confirming that the complainant was defiled was also not challenged and/or controverted by the appellant. In light of this evidence, I am satisfied that the charge of defilement was proved as against the appellant beyond reasonable doubt.
41. On the main issue regarding the legal representation of the appellant, the relevant provisions of Article 50 of the Constitution provides as follows:-
50(2) Every accused person has the right to a fair trial, which includes the right—
(b) to be informed of the charge, with sufficient detail to answer it
(g)to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
42. In the case of David Macharia Njoroge v R (2011) eKLR the Court of Appeal held thus on this issue;
“State funded legal representation is a right in certain instances. Article 50 (1) provides that an accused shall have an advocate assigned to him by the State and at state expense. Substantial injustice is not defined under the Constitution, however, provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2 (6). Therefore, provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory.
We are of the considered view that in addition to situations where substantial injustice would otherwise result, persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense. We would not go so far as to suggest that every accused person convicted of a capital offence since the coming into effect of the new Constitution would automatically be entitled to a re-trial where no such legal representation was provided.”
43. In Karisa Chengo & 2 Others vs. Republic Cr. Nos. 44, 45 & 76 of 2014, again the Court of Appeal stated thus;
“It is obvious that the right to legal representation is essential to the realization of a fair trial more so in capital offences. The Constitution is crystal clear that an accused person is entitled to legal representation at the State’s expense where substantial injustice would otherwise be occasioned in the absence of such legal representation. This court in the David Njoroge Macharia case (supra) seems to have expanded the constitutional requirement that legal representation be provided at state expense in cases where substantial injustice might otherwise result and to include all situations where an accused person is charged with an offence whose penalty is death. This may be misunderstood to mean that all persons, regardless of their economic circumstances, would be entitled, as of right, to legal representation at state expense if they are charged with an offence whose penalty is death. However, substantial injustice only arises in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state obligation to provide legal representation arise.”
44. The above cited cases, the consensus is that the Constitutional provision for the provision for legal representation at the State’s expense is as of right where loss of life is the ultimate penalty upon conviction. However, it has been noted in the case of David Macharia Njoroge v R (2011) eKLR that what amounts to substantial injustice is however not defined in the Constitution. The question then is whether the prescribed sentence under Section 8(3) of the Sexual offences act amounts to substantial injustice to make it a mandatory requirement that the trial court must inform an appellant of their right to legal representation and having so informed him avail to him the same at the State’s expense. I think not and in this regard and also considering that the emphasis in the two cited cases emphasised on loss of life as being what would be considered to amount to substantial injustice, I am persuaded by the finding of Wendoh J in the hereinabove cited case of Owidi v Republic (Criminal Appeal E054 of 2022) [2023] KEHC 21977 (KLR) (23) August 2023) (Judgment) the said right is not absolute and that one has to demonstrate that substantial injustice would result to him if the right is not complied with.
45. I note from the record of proceedings that the rights of the accused to appellant as provided under article 50(2) of the Constitution were accorded to the appellant throughout the trial. The appellant proceeded in a language of his choice being Kiswahili. The charge and all the particulars thereof were explained to him and he pleaded to the same. Witness statements were supplied to the appellant. At some point the appellant exercised his right to object to an application for an adjournment made by the prosecution as a result of which the Hon Magistrate gave the prosecution its last adjournment. The appellant did cross examine all the witnesses as he deemed appropriate and at the close of the prosecution case the ruling was delivered in open Court. The provisions of Section 211 of the Criminal Procedure Code was then explained and the appellant gave an unsworn statement of defence and closed his case.
46. In considering the above, I am satisfied that the appellant was very well able to sufficiently conduct the case and defend the charges levelled against him throughout the trial and that there has been no substantial injustice occasioned to him at all and further that he has not at all demonstrated that substantial injustice has been occasioned to him as a result of not being provided with legal representation at the state’s expense. Over and above, I am not persuaded that a sentence of 20 years’ imprisonment amounts to substantial injustice and more particularly where the rights of an appellant to a fair trial have been upheld throughout the trial. In this regard, I find that the Appeal on this ground lacks merit and the same is accordingly dismissed and the conviction by the Hon Magistrate is accordingly upheld.
47. On the sentence, the court notes that appellant was sentenced to serve 20 years’ imprisonment. The Appellant argued that the sentence is manifestly excessive in the circumstances of this case. In considering this ground, the decision of the Court of Appeal in the case of Bernard Kimani Gacheru v Republic [2002] eKLR is relevant. Therein the court stated as follows;
“It is now settled Law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate Court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial Court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the appellate Court feels that the sentence is heavy and that the appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court on sentence unless, anyone of the matters already states is shown to exist.”
48. Further, Section 8(3) of the Sexual Offences Act which prescribes the appropriate sentence upon conviction provides as follows;
(3) A person who commits an offence of defilement with a child aged between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term not less than 20 years.
49. In Petition No. E018 of 2023 Republic v Joshua Gichuki Mwangi, the Supreme Court made the following finding on the issue of the minimum mandatory sentences as provided under the Sexual Offences Act;
“…..In any case, 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.
50. The said section of the Sexual Offences Act having not been declared unconstitutional since the pronouncement of the Supreme Court in the above judgement it remains a legal, lawful and valid sentence. The Birth Certificate produced as PExh1 was unchallenged and its evidence therefore is uncontroverted. It places the minor at 14 years of age at the time of the commission of the offence. The said Section 8(3) of the Sexual Offences Act provides for a mandatory minimum sentence of 20 years Imprisonment in a conviction of a defilement of a minor aged between 12 and 15 years.
51. I note that it is the minimum sentence that the Hon Magistrate sentenced the appellant to. In this respect, I am satisfied that the sentence meted out was lawful and legal and therefore valid and proper. The same is accordingly upheld. Further, in noting that the appellant was in remand custody throughout the trial and the said sentence did not factor in the period that the appellant spent in pre-trial custody as provided under mandatory provisions of Section 333(2) of the Criminal Procedure Code, I now hereby direct that the sentence is to run from the date that the appellant was arraigned in court.
52. Right of Appeal 14 days
Read Dated and signed at ITEN on 3rd April 2025