1. This Appeal arises from the conviction and sentence of the Appellant in Iten Senior Principal Magistrates Court Case No. E030 of 2023. 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. The particulars of the offence were that on 11/07/2023, at [particulars withheld] village, in Keiyo Sub County within Elgeyo Marakwet County, the accused intentionally caused his penis to penetrate the vagina of VJ, a child aged 12 years. The Appellant was charged with the alternative count of committing an indecent act with the same child contrary to Section 11(1) of the Sexual Offences Act.
2. The Appellant pleaded not guilty to the charge and the case proceeded to full trial in which the prosecution called 5 witnesses. At the close of the prosecution’s case, the Court found that the Appellant had a case to answer and placed him on his defence. On his part, the Appellant gave an unsworn statement of defence and called no witnesses. By the Judgement delivered on 08/02/2024, he was convicted of the main charge and sentenced to 20 years’ imprisonment.
3. Dissatisfied with the decision, the Appellant instituted this appeal against both the conviction and sentence. The following grounds were cited:
1) That the learned trial magistrate erred in law and in fact in not making a finding that the trial she was presiding over was unconstitutional hence null and void on the reason that he was presented in court after 48 hours had elapsed after his arrest offending article 49 (1) (j) of the C.O..K 2010
2) That the he learned trial magistrate erred in law and fact in not complying with section 19 of the Oaths and Statutory declarations Act where the voire dire was not conducted on the complainant who was aged 12 years.
3) That the learned trial magistrate erred in law and fact when she violated the right of the appellant to challenge the evidence of the complainant contrary to article 50(2)(k) of the COK 2010 this was when she disapproved the line of questioning of the appellant on sequence of events on the alleged crime.
4) That the learned trial magistrate erred in law and fact in believing the testimony of an incredible witness who lied on oath when she declined knowing the appellant while it was a fact that the appellant had worked for her and he was a customer at her hotel regularly.
5) That the learned trial magistrate erred in law and fact by being protective of the complainant (Procedural impropriety) considering she was a couched witness who was under duress as she failed to answer questions that were posed to her that was not in her script. ln fact she was a forced victim who was beaten to implicate the appellant.
6) That the trial magistrate erred in law and fact when the ingredients of the offence more-so on penetration (the doctor confirmed she was a virgin) and identification (she indicated she did not know him) was never conclusive or proved to what the learned trial magistrate stated in her judgement
7) That the trial magistrate erred in law and fact in sentencing him to a mandatory sentence which is unconstitutional, making her not to impose an appropriate sentence as his mitigation on record was never considered
8) That the learned trial magistrate erred in law and fact when she failed to realize that there was variance between the particulars of the charge and evidence adduced in breach of section 214 (l) of the pc code The complainant stated that the alleged offence was a repeated activity while the charge sheet spoke of a one-off activity.
9) That the learned trial magistrate erred in law by misapplying it to in unsubstantiated claim that the appellant committed an act of defilement to the complainant on the contrary the ingredients of the alleged offence were not properly established. The conviction was based on suspicion and not evidence.
10) That the learned trial magistrate erred in law and fact when he failed to guide the appellant through the judicial process and misconstrued the appellant's failure to properly follow the trial as a sign of guilt thus contravening articles 50(2) (a) of the constitution of Kenya
11) That the learned trial magistrate erred in law and fact by allowing the appellant to offer mitigation in court without the intention to make use of it and in effect the appellant was sentenced by the court without considering his mitigation against a principle held in a case of Eliud Waweru V R CA No. 102 of 2016,
12) That the trial magistrate erred in law by not complying with section 124 of the evidence act and section 333 (2) while convicting and sentencing the appellant respectively.
13) That the trial magistrate erred in law and fact when he failed to address my compliant that (I )was assaulted and needed to make a report to the police which was some form of torture to confess my involvement in the alleged crime
14) That the trial magistrate erred in law and fact that she ignored evidence that accrued to the advantage of the appellant which could have exonerated him of the alleged offence.
Prosecution evidence before the trial Court
4. PW1 was the complainant. The Court conducted a voire dire examination and determined that she did not understand the nature of the oath thus allowing her to give an unsworn statement. She testified that she was 12 years old and that she knew how to read. She stated that her birth certificate was issued on 27/12/2019 and that she knew the Appellants’ face and further that he is also known as Wajakoya. She testified that she went to borrow drinking water from that appellant. That he gave it to her water then pulled her into his house. He pushed her to his bed and removed her uniform and pant. She further testified that he then removed his shorts, lay on her and did bad manners to her and thereafter he wiped her private parts, gave her a sweet and told her to go home. She picked her clothes and went home and her grandmother took her to hospital at Biretwo on the same day. That they also went to the Police Station where her grandmother was given a document to take to the Hospital. She testified that the appellant defiled her at about 5pm and that she knew the appellant who she usually sees around as he lived at the centre and he usually builds houses.
5. In cross and re-examination, she reiterated that she borrowed water from him and that he is the one who called her into his house and she went and he then pulled her into the house and defiled her. Further, she stated that he usually passes next to Mama Mbithi’s house and she had seen him at the centre and that he had defiled her twice in his house. That he was alone in that plot. That her grandmother had sent her to go and ask the appellant to go and repair her roof that was leaking when he defiled her the first time and she told their neighbour what had happened but she did not report and that is their neighbour who told her grandmother what had transpired.
6. PW2 was RA, the grandmother to the minor and she lives with her. She testified that on 11/07/2023, at around 5pm she had gone to the hospital and thereafter, she sat at the market waiting for the minor. That she saw the class but did not see the minor and as she passed another route, she saw the minor and demanded to know where she was from. The minor told her that she had gone to borrow water from the appellant and she asked her why she had gone to the appellant’s home. She then told her to proceed home. She further testified that after dinner she asked PW1 what happened, and proceeded to beat her causing her to scream. The neighbours then came and she asked them to check the minor. They checked her private parts and discovered that she had been defiled. She stated that they then went to the police station where they were given a P3 form which was filled on the next day. She testified that the appellant who lives at the centre was arrested by the public and that she knew him as a customer in her hotel.
7. In cross and re-examination, she stated that time was 5pm, that the appellant was seen by people and that the witness saw the minor leave the appellant’s house and that she caned the PW1 because she wanted to know the truth and further she took her to hospital so that the doctor could confirm if she had been defiled. She reiterated that the appellant was her customer whom and that she usually sends him to fetch for her water. She stated that she did not know ow the appellant’s house and she had never sent PW1 to the appellant’s house. That when she met the minor at the centre she did not know that she had been defiled and only came to know that after she was examined.
8. PW3 was DK a farmer. She testified that she does not know the appellant but knows the complainant. She testified that on 11/07/2023, at 9pm, she was at home when she heard screams coming from PW1s place and she rushed there and found her uncle beating her. That PW2 then narrated that she had found the minor coming out of the appellant’s house and they then asked PW1 what had happened and she told them that the appellant had called her to his house, given her a sweet and defiled her. They then took her to Biretwo Health Centre and she was given medication. That the following day they went to the police station and recorded statements.
9. PW4 was the Investigating Officer, Corporal Mercy Kirwa who was attached to Chepsigot Police Post. She stated that she was at the report office at around 2200 hours on 11/07/2023 when the accused was brought by Inspector Mougun and another. That on 12th July 2023 she was assigned the same case and he recorded the statements of the witnesses and issued a P3 form and then visited the she visited the scene in company of PW1 and others. That at the scene which was a single room house PW1 showed them where the appellant had defiled her and where he picked the sweets from. That there were also unused condoms under the bed. In cross examination she stated that they visited the house without the appellant as he was in the cells and that it is his employer who opened for them the door to the appellant’s house. She produced PW1’s Birth Certificate as PExh1
10. PW5 was Cherotich Margaret, a clinical officer at Biretwo Health Centre who testified that on 12/072023, a child aged 12 years was brought to the facility allegations of having been defiled by a person known to her. That that week she had been defiled twice and that every time after the act the perpetrator used to clean her and wipe her with water. She testified that on examination, there was no hymen. There were bruises on the labia minora near the clitoris and there was a foul smell. That there was no erythema and no blood seen. She concluded that there were signs of penetration to the genitalia. That she then signed the P3 Form which she produced as PExh2. In cross examination, she reiterated that there was penetration of PW1’s genitalia and that is why she had bruises which could be as a result of the appellant’s penis penetrating the vagina and that the smell was because of an infection due to the several defilements. She confirmed that the appellant was not taken to hospital.
11. At the close of the prosecution case, the trial Magistrate found that a case to answer had been established against the Appellant and placed him on his defence.
Defence evidence
12. The Appellant testified as DW1. He gave an unsworn statement of defence. He stated that that he is a carpenter. That on 11/07/2023 at 5pm, PW1 went to his house to borrow water. That he gave water and she left. That he continued with his work from 5.00 pm and at 9.30 pm he was called by Dennis who is a “bodaboda”. That Dennis told him that there was someone who wanted a vacant room and he told him to tell him to come in the morning. That he insisted and said that the people had come from Marigat and needed accommodation. He then left with Dennis since he knew him. That somewhere along the way, Dennis and 2 other people began beating him on the allegations that he had defiled a child. That the OCS and other officers who were on patrol came to his rescue and in the morning, he recorded his statement. He stated that the mother testified that she beat up the child and forced her to open up on what had happened and the child said that she had slept with the appellant. He denied having defiled PW1.
13. That the doctor reported in the P3 Form that there was no specimen and further that PW3 who stated that she went to the scene upon hearing the commotion and found the mother and uncle of PW1 beating her did not tell the court the observation that they made upon examining the minor. That the minor was seen by the doctor on 12th and she confirmed that there was no defilement and did also not tell the court what caused the foul smell and the bruises. That the Investigating Officer visited the scene in his absence and the fact that they found unused condoms at the scene means there was no defilement. That the minor did not state that the appellant had not defiled her because she had been beaten up. The appellant had indicated that he would call one witness but the said witness did not show up.
14. As aforesaid, by the Judgement delivered on 08/02/2024, the Appellant was convicted and sentenced to 20 years’ imprisonment.
Hearing of the Appeal
15. The Appeal was canvassed by way of written submission. Pursuant thereto, the Appellant filed Submissions on 08/02/2025 while the Respondent, through Prosecution Counsel Calvin Kirui, had filed earlier on 04/12/2024.
Appellant’s Submissions
16. The Appellant submitted that his constitutional rights, specifically the rights of an arrested person under Article 49(1)(j) of the Constitution were violated. He was arrested on 11/07/2023 and presented in court on 13/07/2023 which constituted a violation of his rights as it was 48 hours after his arrest. He urged the court to declare the case a nullity due to this violation and offer him a relief by discharging him.
17. The appellant urged that the trial magistrate made an error in the procedure of conducting voire dire during the trial case. Further, that she did not understand what was to follow after the complainant said she did not understand the meaning of oath taking. The appellant urged the court allow his appeal due to the error of swearing the complainant unprocedurally.
18. The appellant submitted that the learned trial magistrate violated his rights under Article 50 (2)(k) of COK by denying him an opportunity to probe the presented evidence in his case. He further submitted that he was stopped from questioning the appellant regarding her testimony, terming his questions unsuitable for her age. When he repeated the same questions to the investigating officer, the magistrate contradicted herself by indicating the same should have been posed to the complainant. He urged that he found this denial of an opportunity to question his accusers violated his constitutional right to challenge evidence. He submitted that he prayed the court make a finding on this violation.
19. The appellant submitted that the trial magistrate erred in law by considering the evidence of witnesses who weren’t credible to convict and sentence the appellant. He gave the examples of PW1 and PW 2, urging that PW1 indicated she had gone to be given drinking water on cross examination she said she had been sent to call appellant to go and repair a leaking roof. That she further claimed on cross examination there was another time she had been defiled and never reported the incident. He further submitted that PW2 lied under oath on cross examination that she had seen the complainant coming from his house while claiming she had been told earlier. He additionally stated that the checking done on the complainant is very likely to have introduced injuries to the complainant implicated him yet they were not qualified to do the same.
20. The appellant submitted that the trial magistrate was openly biased against him violating Articles 27(1) & (4) and 50(1) of Constitution. He urged that he was not accorded a fair hearing in his trial following the actions of the presiding magistrate denying him a chance to cross examine PW1. He urged that the complainant was not of very tender years as she was presumed to be aged 12 years and therefore did not need the protection of the court. Further, that the investigating officer did not need such protection. He reiterated that he was not accorded fair trial and urged the court to allow the appeal on this ground.
21. The appellant submitted that the trial magistrate did not apply the principles of sentencing in his case to reduce his sentence by a third as per the guidelines. He urged that the trial court did not apply principles such as mitigation and invited the court to correct this omission by considering his mitigation which the trial court failed to mitigate. He then stated that the court offered him an opportunity to mitigate as a formality and further, if his mitigation had been considered his sentence would have been reduced by a third.
22. The appellant submitted that he was sentenced based on a defective charge. He stated that the charge sheet indicated a charge of defilement and the particulars were that the defilement took place on 11/07/2023. However, during the trial, the particulars had an allegation of defilement on an unknown date. The variance of particulars made the charge sheet defective under Section 214 of the Criminal Procedure Code. He urged the court to allow the appeal based on the grounds that the trial court found him guilty based on a defective charge sheet.
23. The appellant urged that the trial court found him guilty without proper establishment of the ingredients of the offence. He urged that Section 33 of the Sexual Offences Act was not complied with as the complainant gave details of the defilement to the doctor and the details were very scanty as there was no date or place provided. Further, that the complainant had to be coerced through a beating to implicate the appellant. He further submitted that there was no evidence of recent penetration as the hymen was missing and no blood was found. He stated that the foul smell could be explained as poor hygiene by the complainant. The appellant urged that the bruises could have been caused by her grandmother when they performed the physical examination on the minor yet they were unqualified. He faulted the medical examination and further, stated that the complainant identified him by the name Wajakoya, which is a popular politician’s name and he did not identify with the name, urging that it could be a case of mistaken identity.
24. The appellant submitted that the trial magistrate failed to address a complaint raised in court on being assaulted. The appellant was unlawfully assaulted by some of the witnesses who testified in court and was held in custody throughout the trial and was unable to make a formal complaint over the above case. He raised the same complaint in court but the court magistrate was non-responsive. The motive for the assault was to obtain a confession from him and he was lucky to be rescued by the police. The act of assaulting him amounted to an illegality and the torture he was subjected to violated his constitutional right against torture. He urged the court to make a finding that his rights were violated and offer him an appropriate remedy.
Respondents’ Submissions
25. Counsel for the state cited the provisions of Section 8(1) and (3) of the Sexual Offenses Act and urged that the ingredients of the offence of defilement were set out in the case of Charles Wamukoya Karani vs. Republic. Criminal Appeal No. 72 of 2013 where it was stated that;
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
26. On the element of identification, Counsel submitted that the prosecution is under a duty to establish or prove all the above elements of defilement beyond reasonable doubt. Further, that 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. Counsel cited the case of Watuku v Republic (Criminal Appeal 08 of 2020) [2022] KEHC 4 (KLR) in support of this submission.
27. Counsel submitted that the identification of the Appellant was by recognition. PW1 testified that she met the Appellant on her way home. She testified that the Appellant was not a stranger to her as she had gone to his house to ask for drinking water. The Appellant gave her drinking water and then pulled her into his house, pushed her on the bed and defiled her. The mother (PW2) testified that he knew the Appellant because he is a regular customer in her hotel. It is therefore clear that the Appellant was not a stranger to PW1 hence was recognized. He cited the case of Anjononi and Others vs The Republic [1980] 1 KLR where the difference in approach between identification and recognition was expressed by Madan J.A.
28. On the issue of penetration, counsel submitted that “Penetration” is defined under Section 2 of the Act to mean “the partial or complete insertion of the genital organs of a person into the genital organs of another person”. He urged that the complainant testified that the Appellant pulled her into his house and pushed her onto his bed. That he then removed her uniform and pant, and removed his short and lied on her. He did bad manners to her and thereafter wiped her private parts. On corroboration of evidence, counsel relied on the provisions of Section 124 of the Evidence Act. Counsel submitted that the evidence of the complainant on the fact of her being penetrated was corroborated by that of the clinical officer (PW5) who stated that upon examining the complainant, he noted that the hymen was absent. That she had bruises on her labia minora near the clitoris, there was a foul smell, no erythema and no blood seen. She concluded that there was sign of penetration and the results were recorded in the P3 form which was produced as Exhibit 2. This evidence proved beyond reasonable doubt that there was penetration as contemplated by the Act.
29. On the issue of age, counsel submitted that the investigating officer testified as PW6 and produced the complainant’s birth certificate as Exhibit No. 1. The said birth certificate indicates that the complainant was born on 07/09/2011 and the incident happened on 11/07/2023. This means that the complaint was 12 years old as at the time of the incident. Counsel cited the case of Moses Mutahi Mugo v Republic [2022] eKLR in support of this submission. He further submitted that the Appellant did not challenge this evidence and no contrary evidence was produced. As such, the age of the complainant was proved beyond any reasonable doubt.
30. Counsel submitted that the appellant raised fourteen grounds of Appeal which can all be summed up as whether the prosecution proved its case beyond any reasonable doubt. He reiterated that the ingredients of the offence which the Appellant was charged with was each proven beyond any reasonable doubt. He further submitted that the grounds of appeal must fail due to lack of merit. He urged the court to dismiss the appeal.
Determination
31. 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).
32. The issues for determination are evidently the following:
a) Whether the defilement charge against the Appellant was proved beyond reasonable doubt.
b) Whether the sentence of 20 years’ imprisonment was proper.
33. Regarding whether the offence was proved beyond reasonable doubt, 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.
34. 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
35. 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.”
36. 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 .......”
37. 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.”
38. 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.”
39. 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.”
40. 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.
41. I have considered the evidence in its totality as herein summarised. I have also perused the impugned charge sheet and read the judgement of the Hon Magistrate and my findings on the issues raised on the grounds of appeal and submissions by the appellant. As alleged, I do not see any defect on the charge. It has clearly given the date and time of the commission of the offence and the same is in tandem with the evidence as adduced by the witnesses. From the proceedings of the lower court, the issue that the appellant was held beyond the constitutionally stipulated period was not raised at all so that the Hon Magistrate could express herself on the same. But that aside I note from the charge sheet that it is indicated that the appellant was arrested on 12/07/023 and arraigned in court on 13/07/023 well within the stipulated timeline. I also note from the proceedings that nowhere is it indicated that the accused raised a complaint of being assaulted which the Hon Magistrate failed to address.
42. On the integrity of the proceedings of the trial court, the record shows that the Hon Magistrate conducted a voire dire examination of the minor PW1 and being satisfied that the minor did not understand the nature of an oath had her affirmed. Further, the record shows that the accused did cross examine the minor on her evidence after her examination in chief. On the other grounds of Appeal which in my considered opinion all fall under the rubric of the appellant challenging the evidence as adduced as having not met the required threshold to warrant a conviction.
43. From my consideration of the evidence in its totality, what emerges is the fact that the appellant’s testimony in his defence does in fact corroborate the circumstances in which the offence was committed as testified by the prosecution witness. In this regard then, not only does it place the appellant at the scene of crime, but it also confirms that the minor was in his house to ask for water as she had testified. It also dispels the appellant’s ground and submission that his was a case of mistaken identity. The said evidence also corroborates the evidence of the Investigating Officer that the house they were directed to belonged to him and that unused condoms were found under his bed.
44. The only point of departure is that the prosecution evidence proved beyond reasonable doubt that he defiled the minor for the reasons already herein summarised. The appellant in his while confirming that the minor was indeed beaten by the mother and uncle to get her to say what had been done to her denied that he had defiled the minor, asserts that she would not have confessed to the allegation of defilement but for the beating and submits that if at all the minor had any injuries in her genitalia, then the same were caused during her examination by the prosecution witnesses as testified for reasons that they did not have the relevant expertise to do so. In light of this corroboration, in this regard then, I need not delve into the veracity of the prosecution witnesses’ testimony but only consider the evidence of the doctor which the appellant submitted did not support a case of defilement.
45. The P3 Form produced as PExh2 indicates that the report of the alleged defilement was made on 11/07/2023 and the minor was examined on 12/07/2023. It indicates that the minor had bruises on the labia minora and the hymen was not seen and that she had a smelly discharge. That the injuries were consistent with a history of defilement and she classified them as harm. In cross examination, the doctor reiterated that there was penetration of PW1’s genitalia and that is why she had bruises which could be as a result of the appellant’s penis penetrating the vagina and that the smell was because of an infection due to the several defilements. These findings were not at all challenged and/or contradicted in any material way in cross examination and further, in giving his opinion on what could have caused the injuries observed on the plaintiff’s genitalia, the appellant does in fact confirm the prosecution case that the minor had injuries on her genitalia consistent with a history of defilement.
46. All considered, I am well satisfied that from the evidence on record, the three ingredients that the prosecution is required to prove in a case of defilement to wit age identification and penetration have been sufficiently proved. I am further satisfied that the proof is on the required standard of beyond reasonable doubt. In this regard, it is my finding that the Appeal by the appellant against conviction lacks merit, the same is accordingly dismissed in its entirety and the finding of guilt and subsequent conviction of the appellant on the main charge of defilement contrary to Section 8(1) 0f the Sexual Offences Act is accordingly upheld.
47. On the ground that the sentence of 20 years’ imprisonment was excessive and that the Hon Magistrate did not consider the appellant’s mitigation before passing sentence, Section 8(3) of the Sexual Offences Act is relevant and it 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.
48. 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.
49. The said section of the Sexual Offences Act having not been declared unconstitutional since the pronouncement of the Supreme Court in the above judgement then it remains valid and lawful. The Birth Certificate produced as PExh1 was unchallenged and its evidence therefore is uncontroverted. It places the minor at 12 years of age at the time of the commission of the offence. Section 8(3) of the Sexual Offences Act provides for a mandatory minimum sentence of 20 years Imprisonment in a conviction of defilement of a minor aged between 12 and 15 years.
50. 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 is 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.
51. Right of Appeal 14 days
Read Dated and signed at ITEN on 3rd April 2025