( An appeal from the sentence in Rongo Magistrate’s Court Case No. E040 of 2023 delivered at on 4 th day of February, 2025 by Hon. C.N.C. OURO –Principal Magistrate, between Republic vs Joram Thomas Shipambo )
JUDGMENT.
Introduction
1. 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 No. 3 of 2006 . The Particulars of the offence were that on the diverse dates between July, 2023 and December at Matete area, Awendo Sub County in Migori County within the Republic of Kenya, unlawfully and intentionally caused his penis to penetrate the vagina of P.A a girl aged 12 years.
2. The appellant faced an alternative charge of committing an indecent act with a minor contrary to Section 11(1) of the Sexual Offences Act, No. 3 of 2006 . The particulars of the offence are that on diverse dates between July 2023 and December 2023 at Matete area sub county in Migori County within the Republic of Kenya unlawfully and intentionally touched the vagina of P.A a girl aged 12 years with penis.
3. The Appellant pleaded not guilty to the charges, and the case proceeded to trial. In a judgment delivered on the 4 th day of February, 2024 the Appellant was convicted on the main charge of defilement and sentenced to twenty (20) years’ imprisonment whereas the alternative charge was held in abeyance.
4. The Appellant being dissatisfied with the sentence of the court, he appealed to this court vide a petition of appeal dated the 17 th February, 2025 in which he raised the following grounds of appeal;
1) That I pleaded not guilty.
2) That the sentence meted herein is harsh, excessive and punitive in the circumstances.
3) That the trial magistrate erred in law by ignoring sentencing policy guidelines.
4) That I am a first offender with no previous criminal record and now remorseful .
Summary of the Evidence Before the Trial Court
5. The prosecution called six (5) witnesses in support of its case. PW1, the complainant, a minor aged 13 years, and goes to Humine Dole Academy. It was her evidence that he knows the Appellant as her step-father and they have lived together for a period of one year. That from July, 2023 to December, 2023 the Appellant had been defiling her whenever her mother left and did not return. She testified that the Appellant had defiled her on several occasion, that she eventually told her mother in December 2023 when she was taken to the Hospital as it was established that she was pregnant. On cross examination she indicated that the Appellant was living together with her and her mother at the time and they only moved out after the incident. She identified the P3 form, Filter Card PRC form produced in evidence.
6. PW2, the complainant’s mother, testified that she knew the Appellant as his husband and the step-father to the complainant. She stated that in December, 2023 the minor mentioned to her that the Appellant had been defiling her from since July, 2023. That she had cohabited with the Appellant when she was away and the Appellant would return when he was drunk and would defile her. PW2 testified that she came to knew about it at the time as the minor had missed her periods. She produced a copy of the minor’s birth certificate. On cross examination by the Appellant PW2, stated that she had lived with the Appellant for a period 3 years and that he would defile the minor when she was not around.
7. PW3 the investigating officer testified that on the 22.12.2023 she received a complaint from PW1 who was accompanied by her mother. She testified that they alleged that on or about the 21.12.2023 they visited a friend at Awendo and it is when the minor told the mother that the Appellant would defile her when the mother is not around. The Investigating officer further testified that when the mother went to the hospital for the minor to be examined she was found to be pregnant. The step father came to the Hospital and it is then the Investigating officer arrested him. She further testified that PW1 had since delivered about a month before.
8. PW4, the clinical officer testified before court that she had filled the P3 Form and that the minor had reported that her step father inserted his penis into the vagina on several occasions. On general examination it was found that the labia majora and minora was normal, the hymen was broken though not freshly broken, there was bruises on the fouchette and whitish discharge on the vagina. On laboratory examination, PW4 testified that there were numeral epithelial cells and the pregnancy test was positive. She went further to produce the PW3 Form, Filter card, PRC Form and Lab Request Form. She also examined the Appellant and on general examination nothing significant was seen
9. PW5 worked with the government chemist in Kisumu. He testified that he carried out DNA analysis on the Complainant, Appellant and the child that had been born. That the same was done in accordance with a court order issued by the trial court. He testified that upon analysis of the samples being done it was evident that by 99.9% the Appellant was the biological father and PW1 was the biological mother. He produced the DNA report in court.
Defense Case
10. The accused gave sworn testimony. He stated that he is a tractor driver, and he denied the charges. It was his testimony that he used to go to work in the morning and returned and found his wife had left. That on the 21.12.2023 his wife called that she wanted to speak with him but he has never defiled the minor as alleged. On cross examination he acknowledged that DNA testing was conducted.
11. The trial court found that the prosecution had established the essential elements of defilement, namely penetration, the age of the victim, and recognition of the perpetrator. The court concluded that the appellant was guilty of defilement and convicted him, accordingly, imposing a custodial sentence of twenty (20) years.
The Appellant’s Submissions
12. The appeal was canvassed by way of written submissions. The appellant, Joram Thomas Shipambo, filed written submissions challenging the sentence in which he relied on section 354 (3) (a) of the Criminal Procedure Code praying that the Honourable Court to reduce the sentence to a more lenient sentence. He submitted that he was a first offender and has reformed while in prison even though the offence he committed was heinous. The Appellant cited the case of Daniel Onyango Ochar vs Republic Siaya Criminal Appeal No. 35 of 2019 and Geofrey Odhiambo vs Republic Siaya Criminal Appeal No. 74 of 2019
13. In conclusion, the appellant prays that the Honourable Court be persuaded and grant the Appellant the benefit pf the least sentence as prescribed under Article 50 (2) (p) of the Constitution
The Respondent’s Submissions
14. The respondent, representing the Republic did not file any submissions to be relied upon at the time I was drafting this judgement.
Analysis and Determination
15. As a first appellate court, I must reconsider and evaluate the evidence in the court below to arrive at an independent conclusion while bearing in mind that I did not hear or see the witness. In Kiilu & Another V Republic, [2005] 1 KLR 174 , the Court of Appeal set out the duties of a first appellate court as follows:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”
(see also Okeno vs Republic (1972) EA 32)
16. Guided by the foregoing principles, I have carefully considered the grounds of appeal, the record of the trial court, re-evaluated the evidence tendered before the trial court, and the written submissions filed by the Appellant. I have also considered the judgment of the trial court in its entirety. It is evident from the grounds of appeal and submissions tendered that the Appellant does not challenge either his conviction or the sufficiency of the evidence upon which it was founded. The appeal is therefore limited to the sentence imposed by the trial court.
17. Consequently, the only issue for determination is whether this Court ought to interfere with the sentence on the grounds that it was unlawful, harsh, excessive, or otherwise founded on wrong principles.
18. This court is guided by the objectives of sentencing as set out in the Judiciary sentencing Guidelines 2016 . They include retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation. In Thomas Mwambu Wenyi v Republic (2017) eKLR , the Court of Appeal held that:
“As for the sentence, the Supreme Court of India in Alister Anthony Pereira v State of Maharashtra at paragraphs 70-71 had this to say on sentencing:
70.Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no strait jacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.
71.The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence
As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”
19. I am guided by the above guidelines and I also note that this is a case where the statute provides a mandatory minimum sentence of 20 years’ imprisonment, a specific penalty prescribed as per the Sexual Offences Act.
20. I have also carefully considered the submissions advanced before this Court and while this Court is not insensitive to the Appellant's personal circumstances as per the said submissions filed on Appeal, the same does not constitute a sufficient basis for interfering with the sentence imposed by the trial court.
21. I find that the trial court indeed considered all the salient issues. Similarly, it should not be lost to the fact that, there are two other persons herein; the complainant and the child of the defilement whose life will never be the same again and therefore the psychological, legal and social impact on both victims of crime cannot be taken and/or treated lightly while imposing the sentence.
22. The offence of defilement is provided under the relevant provisions of the Act as follows:
i. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
ii. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
iii. A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years
23. In conclusions I find that, the sentence meted upon the appellant is legal, proper, and/or lawful. Indeed, the offence committed by the appellant herein, cannot be described in any other way other than “atrocious, heinous and wicked”.
24. The upshot is that, the appeal against sentence has no merit and I dismiss it in its entirety. The appellant shall serve the full sentence imposed unless otherwise lawfully released.
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 13 th Day of August 2026
HCCRA NO. E016 JORAM THOMAS SHIPAMBO VS REPUBLIC JUDGMENT Pg7
JUDGMENT.
Introduction
1. 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 No. 3 of 2006 . The Particulars of the offence were that on the diverse dates between July, 2023 and December at Matete area, Awendo Sub County in Migori County within the Republic of Kenya, unlawfully and intentionally caused his penis to penetrate the vagina of P.A a girl aged 12 years.
2. The appellant faced an alternative charge of committing an indecent act with a minor contrary to Section 11(1) of the Sexual Offences Act, No. 3 of 2006 . The particulars of the offence are that on diverse dates between July 2023 and December 2023 at Matete area sub county in Migori County within the Republic of Kenya unlawfully and intentionally touched the vagina of P.A a girl aged 12 years with penis.
3. The Appellant pleaded not guilty to the charges, and the case proceeded to trial. In a judgment delivered on the 4 th day of February, 2024 the Appellant was convicted on the main charge of defilement and sentenced to twenty (20) years’ imprisonment whereas the alternative charge was held in abeyance.
4. The Appellant being dissatisfied with the sentence of the court, he appealed to this court vide a petition of appeal dated the 17 th February, 2025 in which he raised the following grounds of appeal;
1) That I pleaded not guilty.
2) That the sentence meted herein is harsh, excessive and punitive in the circumstances.
3) That the trial magistrate erred in law by ignoring sentencing policy guidelines.
4) That I am a first offender with no previous criminal record and now remorseful .
Summary of the Evidence Before the Trial Court
5. The prosecution called six (5) witnesses in support of its case. PW1, the complainant, a minor aged 13 years, and goes to Humine Dole Academy. It was her evidence that he knows the Appellant as her step-father and they have lived together for a period of one year. That from July, 2023 to December, 2023 the Appellant had been defiling her whenever her mother left and did not return. She testified that the Appellant had defiled her on several occasion, that she eventually told her mother in December 2023 when she was taken to the Hospital as it was established that she was pregnant. On cross examination she indicated that the Appellant was living together with her and her mother at the time and they only moved out after the incident. She identified the P3 form, Filter Card PRC form produced in evidence.
6. PW2, the complainant’s mother, testified that she knew the Appellant as his husband and the step-father to the complainant. She stated that in December, 2023 the minor mentioned to her that the Appellant had been defiling her from since July, 2023. That she had cohabited with the Appellant when she was away and the Appellant would return when he was drunk and would defile her. PW2 testified that she came to knew about it at the time as the minor had missed her periods. She produced a copy of the minor’s birth certificate. On cross examination by the Appellant PW2, stated that she had lived with the Appellant for a period 3 years and that he would defile the minor when she was not around.
7. PW3 the investigating officer testified that on the 22.12.2023 she received a complaint from PW1 who was accompanied by her mother. She testified that they alleged that on or about the 21.12.2023 they visited a friend at Awendo and it is when the minor told the mother that the Appellant would defile her when the mother is not around. The Investigating officer further testified that when the mother went to the hospital for the minor to be examined she was found to be pregnant. The step father came to the Hospital and it is then the Investigating officer arrested him. She further testified that PW1 had since delivered about a month before.
8. PW4, the clinical officer testified before court that she had filled the P3 Form and that the minor had reported that her step father inserted his penis into the vagina on several occasions. On general examination it was found that the labia majora and minora was normal, the hymen was broken though not freshly broken, there was bruises on the fouchette and whitish discharge on the vagina. On laboratory examination, PW4 testified that there were numeral epithelial cells and the pregnancy test was positive. She went further to produce the PW3 Form, Filter card, PRC Form and Lab Request Form. She also examined the Appellant and on general examination nothing significant was seen
9. PW5 worked with the government chemist in Kisumu. He testified that he carried out DNA analysis on the Complainant, Appellant and the child that had been born. That the same was done in accordance with a court order issued by the trial court. He testified that upon analysis of the samples being done it was evident that by 99.9% the Appellant was the biological father and PW1 was the biological mother. He produced the DNA report in court.
Defense Case
10. The accused gave sworn testimony. He stated that he is a tractor driver, and he denied the charges. It was his testimony that he used to go to work in the morning and returned and found his wife had left. That on the 21.12.2023 his wife called that she wanted to speak with him but he has never defiled the minor as alleged. On cross examination he acknowledged that DNA testing was conducted.
11. The trial court found that the prosecution had established the essential elements of defilement, namely penetration, the age of the victim, and recognition of the perpetrator. The court concluded that the appellant was guilty of defilement and convicted him, accordingly, imposing a custodial sentence of twenty (20) years.
The Appellant’s Submissions
12. The appeal was canvassed by way of written submissions. The appellant, Joram Thomas Shipambo, filed written submissions challenging the sentence in which he relied on section 354 (3) (a) of the Criminal Procedure Code praying that the Honourable Court to reduce the sentence to a more lenient sentence. He submitted that he was a first offender and has reformed while in prison even though the offence he committed was heinous. The Appellant cited the case of Daniel Onyango Ochar vs Republic Siaya Criminal Appeal No. 35 of 2019 and Geofrey Odhiambo vs Republic Siaya Criminal Appeal No. 74 of 2019
13. In conclusion, the appellant prays that the Honourable Court be persuaded and grant the Appellant the benefit pf the least sentence as prescribed under Article 50 (2) (p) of the Constitution
The Respondent’s Submissions
14. The respondent, representing the Republic did not file any submissions to be relied upon at the time I was drafting this judgement.
Analysis and Determination
15. As a first appellate court, I must reconsider and evaluate the evidence in the court below to arrive at an independent conclusion while bearing in mind that I did not hear or see the witness. In Kiilu & Another V Republic, [2005] 1 KLR 174 , the Court of Appeal set out the duties of a first appellate court as follows:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”
(see also Okeno vs Republic (1972) EA 32)
16. Guided by the foregoing principles, I have carefully considered the grounds of appeal, the record of the trial court, re-evaluated the evidence tendered before the trial court, and the written submissions filed by the Appellant. I have also considered the judgment of the trial court in its entirety. It is evident from the grounds of appeal and submissions tendered that the Appellant does not challenge either his conviction or the sufficiency of the evidence upon which it was founded. The appeal is therefore limited to the sentence imposed by the trial court.
17. Consequently, the only issue for determination is whether this Court ought to interfere with the sentence on the grounds that it was unlawful, harsh, excessive, or otherwise founded on wrong principles.
18. This court is guided by the objectives of sentencing as set out in the Judiciary sentencing Guidelines 2016 . They include retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation. In Thomas Mwambu Wenyi v Republic (2017) eKLR , the Court of Appeal held that:
“As for the sentence, the Supreme Court of India in Alister Anthony Pereira v State of Maharashtra at paragraphs 70-71 had this to say on sentencing:
70.Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no strait jacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.
71.The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence
As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”
19. I am guided by the above guidelines and I also note that this is a case where the statute provides a mandatory minimum sentence of 20 years’ imprisonment, a specific penalty prescribed as per the Sexual Offences Act.
20. I have also carefully considered the submissions advanced before this Court and while this Court is not insensitive to the Appellant's personal circumstances as per the said submissions filed on Appeal, the same does not constitute a sufficient basis for interfering with the sentence imposed by the trial court.
21. I find that the trial court indeed considered all the salient issues. Similarly, it should not be lost to the fact that, there are two other persons herein; the complainant and the child of the defilement whose life will never be the same again and therefore the psychological, legal and social impact on both victims of crime cannot be taken and/or treated lightly while imposing the sentence.
22. The offence of defilement is provided under the relevant provisions of the Act as follows:
i. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
ii. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
iii. A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years
23. In conclusions I find that, the sentence meted upon the appellant is legal, proper, and/or lawful. Indeed, the offence committed by the appellant herein, cannot be described in any other way other than “atrocious, heinous and wicked”.
24. The upshot is that, the appeal against sentence has no merit and I dismiss it in its entirety. The appellant shall serve the full sentence imposed unless otherwise lawfully released.
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 13 th Day of August 2026
HCCRA NO. E016 JORAM THOMAS SHIPAMBO VS REPUBLIC JUDGMENT Pg7