(Being an appeal from the sentence of Hon A. Ithuku (CM) in Mombasa SO Case number E112 of 2021)
1. The Appellant herein Juma Kombo Mduruma was charged with the offence of incest contrary to Section 20 (1) of the Sexual Offences Act no. 3 of 2006. The particulars are that on diverse years between January 2018 to August 2021 at Tudor Moroto area in Mombasa sub-county within Mombasa County, being the father unlawfully caused his genital organ namely (penis) to penetrate the genital organ namely vagina of MJ a child aged 14 years.
2. In the alternative charge the appellant was charged with committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act no.3 of 2005. It is alleged that on diverse years between January 2018 to August 2021 at Tudor Moroto area in Mombasa sub-county the accused being the father intentionally and unlawfully committed an indecent act with a child by touching her private parts namely vagina of MJ a child aged 14 years with his male genital organ namely penis.
3. In the second count the appellant was charged with the offence of infringing a child’s right to education contrary to section 7 (1) as read with Section 20 of the Childrens act no. 8 of 2000. In the third count the accused was charged with the offence of attempted defilement contrary to section 9 (1) (2) of the Sexual offences act no. 3 of 2006. In the alternative he was also charged with indecent act with a child contrary to section 11 (1) of the sexual offences act.
4. He pleaded not guilty to the offenses and after a full trial he was convicted for the offence of incest and he was sentenced to serve 25 years’ jail term. He was also convicted for the offence of attempted defilement and sentenced to serve 15 years’ jail term. The sentences to run concurrently.
5. The appellant was not satisfied with the trial court decision and and thus sought this appeal.
6. The appellant’s ground of appeal is as follows; -
a) That the trial court did not fully appreciate my mitigation submission which I presented before the court.
7. In light of the above, this court is tasked to determine whether the trial court appreciated the appellant’s mitigation before passing the sentence herein.
Analysis and Determination
8. The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court held that: -
“….an appellant on a first appeal is entitled to expect the Evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570 . It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support lower court’s findings and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding 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 witnesses, See Peters v Sunday [1958] E.A 424 .”
i. Whether the trial court appreciated the appellant’s mitigation before passing the sentence herein
9. From the record of appeal at page 48 line 10 reads: -
“COURT SENTENCE
I note the plea in mitigation. The court has been informed that the accused person is a first offender. In his mitigation he said that he wants to be seeing his children. The offence of incest was against a minor. The maximum sentence provided is life. The second conviction is on attempted defilement. The victims in this case are his children. The accused person as a father was in a position of trust and expected to protect the children. Instead he turned into a predator. The victim impact statement showed that the victims may have been harmed irreparably. A deterrent and custodial sentence is called for. Accused person will serve in jail for a period of 25 years for the convict of incest and 15 years for the charge of attempted defilement……”
10. A clear reading of the above extract from the lower court judgment indicates that the trial court considered and appreciated the appellant’s mitigation before passing the sentence herein.
11. The appeal lacks merit, the same is dismissed.
12. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 16 TH DAY OF APRIL 2026.
WENDY KAGENDO
JUDGE
IN THE PRESENCE
THE APPELLANT in person
MR SIRIMA FOR THE STATE
BEBORA COURT ASSISTANT
1. The Appellant herein Juma Kombo Mduruma was charged with the offence of incest contrary to Section 20 (1) of the Sexual Offences Act no. 3 of 2006. The particulars are that on diverse years between January 2018 to August 2021 at Tudor Moroto area in Mombasa sub-county within Mombasa County, being the father unlawfully caused his genital organ namely (penis) to penetrate the genital organ namely vagina of MJ a child aged 14 years.
2. In the alternative charge the appellant was charged with committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act no.3 of 2005. It is alleged that on diverse years between January 2018 to August 2021 at Tudor Moroto area in Mombasa sub-county the accused being the father intentionally and unlawfully committed an indecent act with a child by touching her private parts namely vagina of MJ a child aged 14 years with his male genital organ namely penis.
3. In the second count the appellant was charged with the offence of infringing a child’s right to education contrary to section 7 (1) as read with Section 20 of the Childrens act no. 8 of 2000. In the third count the accused was charged with the offence of attempted defilement contrary to section 9 (1) (2) of the Sexual offences act no. 3 of 2006. In the alternative he was also charged with indecent act with a child contrary to section 11 (1) of the sexual offences act.
4. He pleaded not guilty to the offenses and after a full trial he was convicted for the offence of incest and he was sentenced to serve 25 years’ jail term. He was also convicted for the offence of attempted defilement and sentenced to serve 15 years’ jail term. The sentences to run concurrently.
5. The appellant was not satisfied with the trial court decision and and thus sought this appeal.
6. The appellant’s ground of appeal is as follows; -
a) That the trial court did not fully appreciate my mitigation submission which I presented before the court.
7. In light of the above, this court is tasked to determine whether the trial court appreciated the appellant’s mitigation before passing the sentence herein.
Analysis and Determination
8. The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court held that: -
“….an appellant on a first appeal is entitled to expect the Evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570 . It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support lower court’s findings and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding 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 witnesses, See Peters v Sunday [1958] E.A 424 .”
i. Whether the trial court appreciated the appellant’s mitigation before passing the sentence herein
9. From the record of appeal at page 48 line 10 reads: -
“COURT SENTENCE
I note the plea in mitigation. The court has been informed that the accused person is a first offender. In his mitigation he said that he wants to be seeing his children. The offence of incest was against a minor. The maximum sentence provided is life. The second conviction is on attempted defilement. The victims in this case are his children. The accused person as a father was in a position of trust and expected to protect the children. Instead he turned into a predator. The victim impact statement showed that the victims may have been harmed irreparably. A deterrent and custodial sentence is called for. Accused person will serve in jail for a period of 25 years for the convict of incest and 15 years for the charge of attempted defilement……”
10. A clear reading of the above extract from the lower court judgment indicates that the trial court considered and appreciated the appellant’s mitigation before passing the sentence herein.
11. The appeal lacks merit, the same is dismissed.
12. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 16 TH DAY OF APRIL 2026.
WENDY KAGENDO
JUDGE
IN THE PRESENCE
THE APPELLANT in person
MR SIRIMA FOR THE STATE
BEBORA COURT ASSISTANT