1. This appeal emanates from the judgement and conviction of Hon. M.C Nyigei, PM delivered on 19th April, 2023 and the subsequent sentence by the same Magistrate imposed on 10th May, 2023 in Maua Sexual Offence Case No. E063 of 2021, Republic v Julius Kobia.
2. The Appellant Julius Kobia was charged with the offence of defilement contrary to Section 8(1) as read with 8(3) of the Sexual Offences Act Cap 63A Laws of Kenya (erstwhile Act No. 3 of 2006).
3. As is instructive from the charge sheet, the particulars of the offence were that on 12th day of November, 2021 at (particulars withheld), the accused person intentionally caused his male genital organ to penetrate the female genital organ of DM (name withheld, hereinafter referred to as “the survivor”) a child aged 12 years.
4. The Appellant was in the alternative count charged with the offence of committing an indecent act contrary to Section 11(1) of the Sexual Offences Act Cap 63A Laws of Kenya (formerly Act No. 3 of 2006).
5. The prosecution alleged in the particulars of the offence that on 12th day of November, 2021 at (particulars withheld), the Appellant intentionally touched the female genital organ of DM, a child aged 12 years.
6. The Appellant pleaded not guilty to both the principal and alternative counts and a full trial was conducted. The prosecution case was founded on the evidence of six (6) witnesses. The defence evidence comprised the sworn testimony of the Appellant.
7. In the trial court’s judgement rendered on 19th April, 2023, the learned trial Magistrate found that the prosecution had proved the principal charge against the Appellant beyond reasonable doubt and went on to convict him for the offence of defilement contrary to Section 8(1) as read with 8(3) of the Sexual Offences Act, Cap 63A Laws of Kenya. Subsequently, the Appellant was on 10th May, 2023 sentenced to serve 20 years imprisonment.
8. There are ten cited grounds of appeal presented by the Appellant vide the undated Petition of Appeal, which was lodged on 12th May, 2023, upon which the Appellant seeks to upset the conviction and sentence. However, the grounds of appeal that the Appellant addressed in his submissions may be summarized as follows:
a. The learned trial Magistrate erred in law by relying evidence that was insufficient to sustain a conviction.
b. The learned trial Magistrate erred in law and in fact in rejecting the Appellant’s defence without giving reasons thereof.
c. The learned trial Magistrate erred in law and in fact in failing to consider the period that the Appellant spent in custody, when sentencing the Appellant.
d. The learned trial Magistrate erred in law and in fact by imposing a sentence that was manifestly harsh and excessive.
e. The learned trial Magistrate erred in finding that the prosecution proved its case beyond reasonable doubt.
9. On 4th June, 2024, this appeal was placed before this court (Muriithi, J.) for purposes of giving directions on the Appellant’s appeal. The court ordered that the appeal be dispensed with by way of written submissions, and both sides filed their respective submissions.
10. This being a first appeal, this court has a legal duty to re-analyze, re-evaluate and re-assess the evidence adduced in the lower court so as to come up with its own conclusions bearing in mind that it did not have the benefit of seeing the witnesses testify (See Okeno vs Republic [1972] E.A, 32 at page 36, Pandya vs Republic [1957] EA 336, Shantilal M. Ruwala vs Republic [1957] EA 570 and Peter vs Sunday Post [1958] EA 424.
11. The Petition of Appeal, the Record of Appeal, the submissions by the parties and the lower court record have been placed before me and I will proceed to discharge that duty.
12. The record of the lower court indicates that on 9th May, 2022, the trial Magistrate conducted voir dire examination to determine the competency of the Survivor and the admissibility of her evidence. The trial court reached the opinion that PW1 understood the nature of an oath and the duty to tell the truth. The Survivor was then sworn and testified as PW1.
13. In her testimony, the Survivor told the court that she was a grade 6 learner at XY Primary School (particulars withheld) and that that she was born on 29th January, 2009. She stated that on 12th November, 2021 at about 1400hrs, she was at her home with RN (name withheld, who testified as PW3) when the Appellant, who was well known to the survivor as he was a neighbour went to her home to borrow a hammer. The survivor asked the Appellant to wait for her mother, who was away at the time.
14. The survivor told the trial court that she went to the bedroom to change and was followed by the Appellant, who undressed her by taking off her underpants and placed her on a bed. He then held her mouth so that she could not scream and proceeded to violate her by inserting his penis into her vagina, effectively penetrating her vagina with his penis. At that instance, RN opened the door and found the Appellant in the act, on top of the survivor, defiling her. The Appellant promptly left when he saw RN.
15. It was the further evidence of the survivor that when her mother got back home that evening at about 1900hrs, she was informed of what had transpired. She immediately reported to the police and took the survivor to hospital for examination and treatment.
16. The survivor identified the following documents:
- Certificate of birth (which she produced as PExh1).
- Treatment notes.
- Laboratory request form.
- Post rape care form.
- Medical examination report, popularly known as P3 form.
17. Upon being cross examined by the Appellant, the survivor told the trial court that the Appellant found her taking off her clothes and went on to defile her. She denied that she had framed the Appellant.
18. The second prosecution witness (PW2) was JI (name withheld) a community worker and farmer, whose brief testimony was that on 12th November, 2021 at about 1900hrs, her niece – the survivor – told her that she had been defiled by the Appellant in their home earlier that day. PW2 stated that the Appellant was well known to her and the survivor as she was the former’s cousin and the latter’s uncle.
19. The witness stated that the matter was reported to the police and the survivor taken to hospital for examination and treatment.
20. RN (PW3) testified and told the trial court that the Appellant was well known to her as he was from her neighbourhood. She recalled and narrated the events of 12th November, 2021 and stated that on that day at about 1400hrs, she called the survivor but the latter did not answer. She then heard noises that sounded like suppressed screams from the house in which the survivor was. When the door was opened, PW3 saw the Appellant, who was by then dressed up, and the survivor, who was naked and was crying. PW3 informed her cousin who told her to report the matter to the survivor’s mother.
21. PW3 stated that later that day, she asked the survivor to assist her to split firewood and the survivor broke down again and started crying. The witness reported the matter to the survivor’s mother when the latter returned home that evening. The survivor’s mother then beat up the survivor, who told her that the Appellant had defiled her.
22. On being cross examined, PW3 told the trial court that upon being interrogated, the survivor told her mother that it was not the first time that the Appellant had violated her and that he had been buying the survivor ngumu (buns) as an inducement. The witness admitted to having sold beans to the Appellant’s wife which the Appellant was supposed to pay for. She also stated that the survivor’s father had damaged the Appellant’s solar.
23. The survivor’s mother SK (name withheld) testified as PW4 and told the court that PW1 was her first child and was 12 years old. She stated that the Appellant was her relative.
24. PW4 told the court that the matter was reported to her that her daughter had been defiled by the Appellant. She made a report to the police and took PW1 to hospital where she was examined and treated where it was confirmed that she had been defiled.
25. On being cross examined by the Appellant, PW4 told the trial court that the survivor told her that the Appellant had had sexual intercourse with her. She denied framing the Appellant.
26. The testimony of PW5, Reagan Muthomi, a registered clinical officer working at Mutuati Subcounty Hospital was that on 12th November, 2021 at about 2300hrs, he examined and treated the survivor, who was presented to the hospital while in the company of her relatives and police officers. She complained of lower abdominal pain and that she had been defiled by a person known to her. The witness completed the survivor’s P3 form.
27. Upon examination, the witness noted that there were no tears or bleeding in her female genitalia, which appeared normal. Laboratory tests revealed presence of whitish discharge, yeast cells and spermatozoa in her genitalia.
28. The witness produced the following documents as exhibits in support of the prosecution case:
- P3 form.
- Treatment notes.
- Laboratory request form.
- Post rape care form.
29. Upon being cross examined by the Appellant, the witness stated that he was of the opinion that the presence of spermatozoa in the survivor’s genitalia was proof that there was vaginal penetration.
30. The last prosecution witness was Police Constable Jacinta Wanjira, the investigating officer, who testified as PW6. The witness stated that the matter was reported to the police and that witness statements were recorded after the survivor was treated and her PRC and P3 forms filled. The witness conducted investigations and upon conclusion caused the Appellant to be charged before the lower court.
31. PW6 was cross examined by the Appellant and stated that he was apprehended by members of the survivor’s family on 28th November, 2021 and handed over to the police.
32. The prosecution closed its case at that stage and in its ruling rendered on 23rd March, 2023, the court reached a finding that the prosecution had made out a prima facie case against the Appellant and the he was placed on his defence.
33. In his sworn testimony, the Appellant told the trial court that he worked as a miraa harvester. He stated that the survivor was her cousin.
34. The Appellant stated that he went to PW4’s home on 12th November, 2021 to borrow a hammer but did not find her at home. When he asked for a hammer from the survivor, the latter told her to wait for PW4. He then left. The Appellant and the survivor knew each other well.
35. The Appellant stated that he was apprehended on 28th November, 2011 and placed in police custody until the next day when he was presented before the lower court.
36. The Appellant claimed that he had differences with the survivor’s father, who was his uncle, emanating from a land dispute. He said that there was another issue that arose relating to 5kg of beans that RN had sold to the Appellant’s spouse. He added that after his arrest, his wife left him to get married elsewhere as the survivor’s family could not let her reside in the neighbourhood in peace.
37. The defence case was then closed.
38. Upon considering the evidence of the six (6) prosecution witnesses, the Appellant’s defence, the learned trial Magistrate, Hon. M.C. Nyigei found that the prosecution had satisfied all the ingredients of the offence defilement contrary to Section 8(1) as read with 8(3) of the Sexual Offences Act and thus had proved its case beyond reasonable doubt and convicted the Appellant on the principal charge. The Appellant was subsequently sentenced to serve 20 years imprisonment. He preferred the instant appeal, being aggrieved by the conviction and sentence.
39. I have considered the grounds of appeal, the filed submissions, the evidence adduced before the trial court and the lower court’s record in its entirety. I deduce the issues that I am now tasked to determine, as follows:
a. Whether the trial Magistrate fell into error in reaching the finding that the prosecution had proved its case beyond reasonable doubt, on the basis of the evidence and/or material on record.
b. Whether the sentence that was imposed by the learned trial Magistrate was manifestly harsh and/or excessive and/or within the law that governs sentencing and custodial sentences.
40. Inevitably, this court in determining the issues stated above must satisfy itself that the ingredients of the offence of defilement were proved against the Appellant beyond reasonable doubt, as is the requirement in law.
41. The offence of defilement is provided for under Section 8 of the Sexual Offences Act as follows:
8. Defilement
(1). A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2). 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.
(3). A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
42. From the provisions above, the offence of defilement is committed when the offender commits an act of which causes penetration with a child. 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.
43. It then follows that that the ingredients of defilement are:
- Age of the survivor – the survivor must be a minor or child;
- Proof of penetration;
- Identification of the perpetrator.
44. In respect of the first ingredient, the victim and her mother told the trial court that the former was twelve years old as at 12th November, 2021 when the offence of defilement is alleged to have been committed.
45. The prosecution produced the survivor’s certificate of birth which indicates her date of birth as 28th January, 2009. The same being an official document and considering that the contents thereof were not challenged by the Appellant, it was proved beyond reasonable doubt that she was about two months shy of turning 13 years old as at 12th November, 2021. She was therefore 12 years old.
46. That then means that the survivor was a child within the meaning of Section 2 of the Sexual Offences Act and Section 2 of the Children Act. The latter defines a “child” to mean any human being under the age of eighteen years.
47. Regarding the second ingredient, which is proof of penetration, we have seen above that penetration involves the partial or complete insertion of the genital organs of a person into the genital organs of another person.
48. From the evidence of the prosecution witnesses, the survivor was examined and treated the same day that she is said to have been violated. Treatment notes, PRC and P3 forms were presented as evidence by the prosecution. As per the three sets of documents and the evidence of PW5, there were no tears or bleeding in the survivor’s female genitalia, which appeared normal. Laboratory tests however revealed the presence of whitish discharge, yeast cells and spermatozoa in her genitalia.
49. The fact of penetration can be proved by oral evidence where documentary evidence by way of medical evidence is not conclusive, as was held in the case of Kassim Ali v Republic [2021] eKLR. The court held as follows in that case:
“So the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim of rape or by circumstantial evidence.”
50. PW5 testified and told the court that the laboratory tests that were conducted on the survivor yielded the results that showed the presence of epithelial cells, pus cells, yeast cells and spermatozoa in her genitalia. The witness opined that the presence of spermatozoa in the survivor’s genitalia was proof that there was penetration.
51. I agree with the opinion of the witness that the presence of spermatozoa in the genitalia of the survivor, being one that is in the circumstances of this case incapable of explanation upon any other reasonable hypothesis other than there having been penetration, proved that there indeed was such penetration.
52. The third ingredient concerns the identification of the perpetrator. The question that abounds is whether the Appellant the prosecution proved beyond reasonable doubt that it is the accused person who committed the act of penetration with the survivor and whether he was properly identified as the perpetrator beyond reasonable doubt.
53. PW1 told the court that the Appellant was well known to her and was in fact her relative and a neighbour. She stated that on 12th November, 2021, the Appellant went to her home to borrow a hammer. That the survivor told the Appellant to wait for her mother and went into the house to change clothes. That the Appellant then followed her to the house, undressed her and proceeded to have carnal knowledge with her while holding her mouth and that he stopped the act when PW3 emerged at the house.
54. The Appellant himself confirmed in his evidence in defence that he was the survivor’s cousin and neighbour and that the two knew each other well. He also confirmed that he went to PW4’s home to borrow a hammer and found the survivor there. PW4 was at the time away. He however denied defiling the survivor.
55. The evidence of PW3 was that she heard what sounded like suppressed screams and called out the name of the survivor, who did not respond. She then went to the house where the survivor was and met the Appellant, who was dressed. The survivor was however completely naked and was crying. The matter was later reported to the survivor’s mother and that the survivor told her that the Appellant had had sexual intercourse with her. She was then taken to hospital for treatment.
56. It is clear from the evidence of the prosecution witnesses that the chain of events between the time the Appellant went to borrow a hammer; to when the alleged act of penetration was committed by the Appellant; to the time PW3 found the Appellant with the survivor, who was naked and crying; to the time the report to the police was made; to the time when the medical examination and treatment of the survivor was done, was not broken.
57. Considering that the chain of events remained unbroken, the ultimate results from the laboratory which indicated that there was spermatozoa in the survivor's genitalia gives credence to the survivor’s evidence, beyond reasonable doubt, that the Appellant, who was very well known to her, was the perpetrator who defiled her. The identity of the Appellant as the perpetrator was in the premises proved without any possible degree of fault.
58. I have considered the defence of the Appellant that there was bad blood between him and the survivor’s family emanating from a land dispute, which caused the family of PW1 to frame him for the offence against the survivor. The defence, which I have considered, must be rejected as being an afterthought, calculated with the intention of attempting to evade criminal culpability.
59. I say so for the following three reasons, upon which I reject the defence:
a. If indeed there was bad blood between the Appellant and the family of the survivor, I doubt that the Appellant would be so at ease to proceed to the survivor’s home with the intention of borrowing items (in this case a hammer) from the survivor’s family.
b. The Appellant did not describe or expound on the nature of the land dispute that allegedly pitted him against the family of the survivor.
c. The defence, when weighed against the overwhelming evidence of the prosecution, particularly his interaction with the survivor who was naked, which fact was corroborated by PW3; and the subsequent laboratory results that showed that she had spermatozoa in her genitalia, a period not too long after such interaction, just does not hold water.
60. Being of the foregoing findings, I am of the persuasion that the learned trial Magistrate properly analyzed both the evidence for the prosecution and the sworn defence of the Appellant and reached the correct findings that the survivor was a child of twelve years and that she was defiled and that the Appellant was properly identified as the perpetrator, beyond reasonable doubt.
61. The conviction of the Appellant on the principal charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act was in the circumstances proper and safe.
62. The second issue I am to determine is whether the sentence that was imposed by the learned trial Magistrate was manifestly harsh and/or excessive and/or within the law that governs sentencing and custodial sentences.
63. We have seen above that under Section 8(3) of the Sexual Offences Act, 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.
64. A trial court exercises discretion in sentencing. Such discretion must however be exercised judiciously. An appellate court cannot interfere with the discretion of the trial or sentencing court unless it is demonstrated that in exercise of such discretion, the trial or sentencing court misdirected itself and/or applied the wrong principles resulting in a sentence that is manifestly high or lenient.
65. The cases that guide me in this regard are:
a. S. vs Malgas 2001 (1) SACR 469 (SCA in which the court observed as follows:
“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court….
However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking” “startling” or “disturbingly inappropriate” similarly in Mokela vs The State (135/11) [2011] ZASCA 166, the Supreme Court of South Africa held that:
“It is well established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served.”
b. Fatuma Hassan Salo v Republic [2006] eKLR, where Makhandia, J (as he then was) asserted that:
“Sentencing is a matter for the discretion of the trial court. The discretion must however, be exercised judicially. The trial court must be guided by evidence and sound legal principle. It must take into account all relevant factors and exclude all extraneous or irrelevant factors.”
c. Ogolla s/o Owuor vs Republic [1954] EACA 270 in which the East Africa Court of Appeal stated as follows on the matter:
“The court does not alter a sentence unless the trial judge has acted upon wrong principles or overlooked some material factors.”
d. Kimani Gacheru v R [2002] eKLR in which it was held that:
“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 stated is shown to exist.”
66. The Appellant complained in his appeal on sentence that the sentence was manifestly excessive and the period that he was held in remand pending the determination of his trial was not considered by the learned trial Magistrate when she imposed the sentence.
67. From his grounds of appeal on sentence, two questions for determination are whether the Appellant’s sentence violated Section 333(2) of the Penal Code and whether the trial court erred by imposing a sentence that was manifestly harsh.
68. On the first point taken by the Appellant in his submissions, the attack on the sentence imposed by the trial court is that the learned trial Magistrate, when passing the sentence, ought to have considered the period that the Appellant had remained in custody, which the trial court failed to do.
69. A perusal of the lower court record informs me that the Appellant was first presented before the court for plea taking on 30th November, 2021. He remained in custody until 10th May, 2023 when he was sentenced to 20 years imprisonment. When sentencing him, the learned trial Magistrate stated thus:
“I have considered the Probation Officer’s report and also the fact that the accused person and the survivor are related. The accused person took advantage of a young girl of 12 years. I consider his age too. The accused person has been in custody for about one year and five months and I also take that into consideration. The Sexual Offences Act at Section 8(3) provides for a sentence of not less than 20 years. This means even if I consider the period that he has served, I could sentence him to more than 20 years. The fact that the accused person was a relative to the girl, then (sic) I sentence him to serve a term of imprisonment for a period of 20 years.”
70. The Appellant complains that when sentencing him, the trial court went afoul of Section 333(2) of the Criminal Procedure Code, which provides as follows:
333(2). Subject to the provisions of Section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
71. The above provision, (subject to Section 38 of the Penal Code), impels the sentencing court to mandatorily consider the period that an accused person has spent in custody when imposing a sentence. Section 38 of the Penal Code deals with situations where a sentence is passed on an escaped convict and is therefore not applicable to the present case.
72. The Judiciary Sentencing Policy Guidelines provide as follows:
“The proviso to Section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”
73. From the proceedings on sentence, the learned trial Magistrate merely stated that she took into account and/or considered the period that the Appellant had spent in custody as the trial proceeded. She however did not state and/or explain the manner in which the period that the Appellant spent in custody impacted on the sentence that that was ultimately imposed. That in my respectful view was material misdirection that paves way for this court to interfere with the sentence imposed by the learned trial Magistrate.
74. My understanding of Section 333(2) of the Criminal Procedure Code is that it is not sufficient for a sentencing court to merely state that the remand period has been considered when sentencing. The court must proceed to show that that period has been deducted from the sentence that is imposed. How have superior courts dealt with this issue, when faced with the same?
75. In the case of Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR the Court of Appeal held that:-
“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by Section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.”
(Underlined emphasis).
76. The same court in Bethwel Wilson Kibor vs Republic [2009] eKLR expressed itself as follows:
“By proviso to Section 333(2) of the Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take into account of the period spent in custody. Ombija J, who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at 22nd September 2009 he had been in custody for 10 years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing, we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.”
77. I am therefore guided that as the trial court did not specifically state that the period that the Appellant spent in custody was considered when sentencing him, and failed to proportionately reduce the sentence by the period that the Appellant served in remand custody, the court infracted Section 333(2) of the Criminal Procedure Code.
78. On the second point taken by the Appellant that the sentence was manifestly excessive or harsh.
79. I note that the trial court considered the Appellant’s mitigation and the fact that he was a first offender before imposing the sentence. The sentence that was imposed by the learned trial Magistrate was the minimum sentence that the law provides under Section 8(3) of the Sexual Offences Act. The same cannot in the premises be said to have been manifestly excessive or harsh.
80. Being of the foregoing inclination, I will allow the appeal on sentence, only to the extent that I order that the sentence of 20 years imposed by the trial court shall run from 29th November, 2021, being the date that the Appellant was first presented before the court for plea and was thereafter detained in custody pending conclusion of the trial.
DELIVERED (virtually) DATED and SIGNED this 6th day of February, 2025.
JOE M. OMIDO
JUDGE
APPELLANT: Present.
FOR RESPONDENT: Ms. Kimunya, Prosecution Counsel.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.