REPUBIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL APPEAL NO. E004 OF 2025
KELVIN KIELEKO NZIOKI ………………….…….………APPELLANT
VERSUS
REPUBLIC ……………………………………………………RESPONDENT
JUDGMENT
(Being an appeal from original sentence in SOA case at Shanzu CMCR (SO) no E129 of 2023 delivered on 21/1/2025 by Hon L.N JUMA)
1. The Appellant, Kelvin Kieleko Nzioki, was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act of 2006. The particulars of the offence are that on the 26 th October 2023 at Majengo area within Mtwapa township in Kilifi County of Coast Region intentionally and unlawfully caused his penis to penetrate the anus of K.M a male aged 8 years old.
2. The accused person also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars are that on the 26 th October 2023 at Majengo area within Mtwapa township in Kilifi County of Coast Region intentionally and unlawfully touched the buttocks and anus of K.M a boy child aged 8 years with his hands.
3. The appellant was convicted on the main count and sentenced to serve life imprisonment.
4. The appellant was not satisfied with the sentence of the trial court and thus sought this appeal.
5. The appellants’ grounds of appeal are summarized as follows;
i. That the trial court erred in law and fact by failing to conduct a mitigation hearing, contrary to Section 216 and 329 of the Criminal Procedure Code.
ii. The trial Court erred in law by construing the relevant penal provision as a mandatory which cannot be departed from.
6. In light of the above, the appellant is aggrieved with the sentence meted by the trial court hence the court will focus on the above 2 grounds of appeal.
Analysis and Determination
7. 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 conducted a mitigation hearing or not
8. Page 60-61 of the record of appeal states: -
“ 11/12/2024
Before Hon Leah Juma-PM
Prosecution Counsel: Safiya
Court Assistant:Joan
Accused:Present
Court: Typed judgement duly delivered today.
Prosecution: No previous records.
Mitigation: I am the sole bread winner. I am diabetic. My mother relies on me. I pray for a lenient sentence.
That is all.
Court: A presentence report together with a victim impact to be availed by the probation officer on 21/1/2025. Bond terms cancelled pending evidence...”
9. From the above extract of the record of appeal, it is crystal clear that the appellant was heard on mitigation before the court requested for a pre-sentence report and victim impact report. The appellant cannot fault the trial court on that. The ground of appeal therefore fails.
ii. Whether the trial court erred in law on the sentence meted herein
10. The appellant was convicted on the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the sexual Offences Act of 2006. He was sentenced to serve life imprisonment.
11. Section 8 of the Sexual Offences Act, 2006 is captured in the following terms in creating the offence and punishment for defilement;
“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.
12. I note that the age of the victim was 8 years at the time of the offence and the mandatory minimum sentence is imprisonment for life. In the recent decision of Republic vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) the Supreme Court considered the constitutionality of the minimum offence under the Sexual Offences Act and categorically and emphatically held that the same are constitutional and the courts must impose the same unless and until they are declared unconstitutional.
13. In the case of Charles & Another vs Republic (Criminal Appeal 38 of 2019) [2024] (Judgment) [2024] KECA 1902 (KLR) the Court of Appeal ceded to the binding nature of the decisions of the Supreme Court and stated:
“(35) We will now come to the final issue: sentence. The appellants complain against the mandatory nature of the minimum sentence terming it unconstitutional for not permitting individualized mitigation. In the circumstances of the case, they both complain that the minimum sentence was harsh and excessive since they were both of extreme youth; first offenders; and were remorseful. Additionally, they showed great capacity for reform and rehabilitation.
36.All these extenuating factors are true. It is also true that our jurisprudence had taken a turn to impugning the constitutionality of the minimum sentences prescribed in the Sexual Offences Act . Unfortunately for the appellants, that jurisprudential trajectory was halted by the recent decision by the Supreme Court in Republic vs Joshua Gichuki Mwangi (Petition E018 of 2023) [2024] KESC 34 (KLR)(delivered on 12th July, 2024) . In that case, the Supreme Court held that the mandatory minimum sentences in the Sexual Offences Act are not unconstitutional; and that trial courts have no discretion to go below the minimum statutory minimum sentences in sexual offences.
37.The Supreme Court held:
“56. Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence. In fact, to use the words mandatory and minimum together convolutes the express different definitions given to each of the two words. Although, the term ‘mandatory minimum’ can be found used in different jurisdictions, including the United States, and in a number of academic articles, it is not applicable as a legally recognized term in Kenya. In this country, a mandatory sentence and minimum sentence can neither be used interchangeably nor in similar circumstances as they refer to two very different set of meanings and circumstances.
57.In the Muruatetu case, this court solely considered the mandatory sentence of death under Section 204 of the Penal Code as it is applied to murder cases; it did not address minimum sentences at all. Therefore, mandatory sentences that apply for example to capital offences, are vastly different from minimum sentences such as those found in the Sexual Offences Act , and the Penal Code . Often in crafting different sentencing for criminal offences, the drafters of the law in the Legislature, take into consideration a number of issues including deterrence of crime, enhancing public safety, sequestering of dangerous offenders, and eliminating unjustifiable sentencing disparities.”
38.This decision is binding on us under the doctrine of stare decisis. In the present case, the appellants were convicted under Section 8(2) of the Sexual Offences Act . The statutory minimum sentence under that sub-section is twenty (20) years imprisonment. That was the sentence imposed on the appellants. Given the Supreme Court’s binding precedent, we cannot interfere with that sentence whatever our views on the extenuating circumstances.”
14. In the above foregoing, the decisions of the Court of Appeal and the Supreme Court are binding on this court. The appellant was sentenced to serve life imprisonment which is a lawful sentence as per the law. This ground of appeal also fails.
15. In conclusion, the appeal lacks merit and the same is dismissed.
16. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 11 TH DAY OF JUNE 2026.
WENDY KAGENDO - JUDGE
IN THE PRESENCE
THE APPELLANT in person
Ms CHEROP FOR THE STATE
BEBORA COURT ASSISTANT
IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL APPEAL NO. E004 OF 2025
KELVIN KIELEKO NZIOKI ………………….…….………APPELLANT
VERSUS
REPUBLIC ……………………………………………………RESPONDENT
JUDGMENT
(Being an appeal from original sentence in SOA case at Shanzu CMCR (SO) no E129 of 2023 delivered on 21/1/2025 by Hon L.N JUMA)
1. The Appellant, Kelvin Kieleko Nzioki, was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act of 2006. The particulars of the offence are that on the 26 th October 2023 at Majengo area within Mtwapa township in Kilifi County of Coast Region intentionally and unlawfully caused his penis to penetrate the anus of K.M a male aged 8 years old.
2. The accused person also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars are that on the 26 th October 2023 at Majengo area within Mtwapa township in Kilifi County of Coast Region intentionally and unlawfully touched the buttocks and anus of K.M a boy child aged 8 years with his hands.
3. The appellant was convicted on the main count and sentenced to serve life imprisonment.
4. The appellant was not satisfied with the sentence of the trial court and thus sought this appeal.
5. The appellants’ grounds of appeal are summarized as follows;
i. That the trial court erred in law and fact by failing to conduct a mitigation hearing, contrary to Section 216 and 329 of the Criminal Procedure Code.
ii. The trial Court erred in law by construing the relevant penal provision as a mandatory which cannot be departed from.
6. In light of the above, the appellant is aggrieved with the sentence meted by the trial court hence the court will focus on the above 2 grounds of appeal.
Analysis and Determination
7. 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 conducted a mitigation hearing or not
8. Page 60-61 of the record of appeal states: -
“ 11/12/2024
Before Hon Leah Juma-PM
Prosecution Counsel: Safiya
Court Assistant:Joan
Accused:Present
Court: Typed judgement duly delivered today.
Prosecution: No previous records.
Mitigation: I am the sole bread winner. I am diabetic. My mother relies on me. I pray for a lenient sentence.
That is all.
Court: A presentence report together with a victim impact to be availed by the probation officer on 21/1/2025. Bond terms cancelled pending evidence...”
9. From the above extract of the record of appeal, it is crystal clear that the appellant was heard on mitigation before the court requested for a pre-sentence report and victim impact report. The appellant cannot fault the trial court on that. The ground of appeal therefore fails.
ii. Whether the trial court erred in law on the sentence meted herein
10. The appellant was convicted on the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the sexual Offences Act of 2006. He was sentenced to serve life imprisonment.
11. Section 8 of the Sexual Offences Act, 2006 is captured in the following terms in creating the offence and punishment for defilement;
“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.
12. I note that the age of the victim was 8 years at the time of the offence and the mandatory minimum sentence is imprisonment for life. In the recent decision of Republic vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) the Supreme Court considered the constitutionality of the minimum offence under the Sexual Offences Act and categorically and emphatically held that the same are constitutional and the courts must impose the same unless and until they are declared unconstitutional.
13. In the case of Charles & Another vs Republic (Criminal Appeal 38 of 2019) [2024] (Judgment) [2024] KECA 1902 (KLR) the Court of Appeal ceded to the binding nature of the decisions of the Supreme Court and stated:
“(35) We will now come to the final issue: sentence. The appellants complain against the mandatory nature of the minimum sentence terming it unconstitutional for not permitting individualized mitigation. In the circumstances of the case, they both complain that the minimum sentence was harsh and excessive since they were both of extreme youth; first offenders; and were remorseful. Additionally, they showed great capacity for reform and rehabilitation.
36.All these extenuating factors are true. It is also true that our jurisprudence had taken a turn to impugning the constitutionality of the minimum sentences prescribed in the Sexual Offences Act . Unfortunately for the appellants, that jurisprudential trajectory was halted by the recent decision by the Supreme Court in Republic vs Joshua Gichuki Mwangi (Petition E018 of 2023) [2024] KESC 34 (KLR)(delivered on 12th July, 2024) . In that case, the Supreme Court held that the mandatory minimum sentences in the Sexual Offences Act are not unconstitutional; and that trial courts have no discretion to go below the minimum statutory minimum sentences in sexual offences.
37.The Supreme Court held:
“56. Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence. In fact, to use the words mandatory and minimum together convolutes the express different definitions given to each of the two words. Although, the term ‘mandatory minimum’ can be found used in different jurisdictions, including the United States, and in a number of academic articles, it is not applicable as a legally recognized term in Kenya. In this country, a mandatory sentence and minimum sentence can neither be used interchangeably nor in similar circumstances as they refer to two very different set of meanings and circumstances.
57.In the Muruatetu case, this court solely considered the mandatory sentence of death under Section 204 of the Penal Code as it is applied to murder cases; it did not address minimum sentences at all. Therefore, mandatory sentences that apply for example to capital offences, are vastly different from minimum sentences such as those found in the Sexual Offences Act , and the Penal Code . Often in crafting different sentencing for criminal offences, the drafters of the law in the Legislature, take into consideration a number of issues including deterrence of crime, enhancing public safety, sequestering of dangerous offenders, and eliminating unjustifiable sentencing disparities.”
38.This decision is binding on us under the doctrine of stare decisis. In the present case, the appellants were convicted under Section 8(2) of the Sexual Offences Act . The statutory minimum sentence under that sub-section is twenty (20) years imprisonment. That was the sentence imposed on the appellants. Given the Supreme Court’s binding precedent, we cannot interfere with that sentence whatever our views on the extenuating circumstances.”
14. In the above foregoing, the decisions of the Court of Appeal and the Supreme Court are binding on this court. The appellant was sentenced to serve life imprisonment which is a lawful sentence as per the law. This ground of appeal also fails.
15. In conclusion, the appeal lacks merit and the same is dismissed.
16. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 11 TH DAY OF JUNE 2026.
WENDY KAGENDO - JUDGE
IN THE PRESENCE
THE APPELLANT in person
Ms CHEROP FOR THE STATE
BEBORA COURT ASSISTANT