REPUBLIC OF KENYA
IN THE HIGH COURT AT MARSABIT
CRIMINAL APPEAL NUMBER E005 OF KENYA
KENNA MIRCHIGAN………………………………………..………APPELLANT
VERSUS
REPUBLIC………………………………………...………………..RESPONDENT
( Being an appeal arising from the conviction and sentence delivered on 29.01.2026, by Hon S.K Arome (PM) in Marsabit MCSO No E009 of 2025)
BETWEEN
REPUBLIC…………………………….………..…………………..PROSECUTOR
VERSUS
KENNA MIRCHIGAN……………………………………….…………ACCUSED
JUDGEMENT
A. INTRODUCTION
1. The Appellant was charged with the offence of attempted defilement contrary to section 9 (1) (2) of the Sexual Offences Act No 3 of 2006 . The particulars of the offence were that on 7 th day of July 2025 at Hula Hula area in Marsabit central sub county within Marsabit County, intentionally attempted to cause his penis to penetrate the vagina of A.A a child aged 4 years.
2. In the alternative, he was charged with the offence of committing an indecent Act with a child contrary to section 11(1) of the Sexual Offences Act, No 3 of 2006. The particulars of the offence were that on 7th day of July 2025 at Hula Hula area in Marsabit central sub county within Marsabit County, he intentionally attempted to cause his penis to penetrate the vagina of A.A a child aged 4 years.
3. The Appellant took plea and pleaded not guilty to the charges.
B. PROSECUTION CASE
4. PW 1. AA underwent voir dire examination and gave unsworn evidence. She stated that she lived with her mother at Kargi, and confirmed that she did not know the appellant, he had never carried her before nor had he bought her anything.PW 2. Ahadho Galgalo testified that on 07.07.2025 at about 3.00 p.m. she was feeling unwell and decided to go to hospital. She passed by her neighbour’s house and found the neighbours children playing outside under the tree’s and left her child to play with them.
5. She went back to her house to prepare and while enroute to the main road, as she passed by her neighbour’s house, she heard PW1 screaming from inside the said house, saying “ leave me alone ” in Rendille language. She rushed into the said house and discovered that PW1, was inside holding her dress, which was worn over a trouser. The Appellant, too was therein with his trousers pulled down to his thighs. However, on seeing her he pushed her aside and ran outside. Thereafter, she held the child and walked out screaming, which act, attracted neighbors who came to check on what was happening. They inspected the child and noted that she was fine and had not been abused, though her trousers were wet, and importantly, the accused had not removed them. Later, the child’s grandmother arrived and was informed of the incident that had occurred.
6. She reiterated her earlier evidence, that she had found the accused inside the house, alone with the child, and he was a person well known to her since they were neighbours and stressed that she did not have any grudge against him. During cross examination she reaffirmed that she found the Appellant with his trouser pulled down to thighs level at his sister’s house together with PW 1 who was crying.
7. PW 3 Keisimu Arandidhe confirmed that PW 1 was her granddaughter and further stated that, when the incident happened, she was away from home and when she returned, she found her neighbours had gathered within her home and were agitated. They informed her that the accused had attempted to defile PW1 within her house and upon examining her granddaughter, she confirmed that she was okay. They proceeded to report the matter to the police and had the child examined at the hospital.
8. PW4 Abdi Halkano Godana stated that she was a clinical officer based at Marsabit County Referral hospital, and had examined PW1 on 07.07.2025. she noted that the Minor did not have any laceration or injuries on the labia minora/majora. The hymen was intact and there were no blood stains or infection. She filled in the P3 form and PRC form and produced them into evidence.
9. PW5 Corporal Madina Ano attached to Marsabit police station, also testified and confirmed that on 07.07.2025 this case was reported and minuted to her by the OCS. By then, the Appellant had been arrested by members of public and was in custody. She recorded witness statements and had PW1 examined at the county referral hospital and upon conclusion of her investigations, she preferred the charges before court. She also produced the age assessment report of the minor as Exhibit P3.
C. DEFENCE CASE
10. The appellant was placed on his defence and opted to give sworn evidence. He denied attempting to defile PW 1 on the material day or on any other day and insisted that he had been framed by PW 2. He further confirmed that had just showered and when he came out, he saw the child and chased the child away, causing her to cry. PW2 heard the child cry and came to check on what was happening, but the truth was that he did not touch PW1 and this was confirmed by the doctor who examined the said child. He thus urged the court to release him.
D. JUDGEMENT
11. The learned trial magistrate considered all the evidence adduced and found the Appellant guilty of the offence of attempted defilement and proceeded to convict him under Section 215 of the criminal procedure code . After mitigation, the trial court sentenced the Appellant to serve ten years imprisonment.
E. THE APPEAL
12. Dissatisfied by the conviction and sentence passed, the Appellant filed his petition of appeal and raised the following grounds of Appeal that;
a. THAT the learned trial magistrate erred in law and fact by failing to note that the prosecution failed to prove their case beyond reasonable doubt.
b. THAT the learned trial magistrate erred in law and facts by failing to note that the sentence passed was harsh and excessive in the circumstances of this case
c. THAT the learned trial magistrate erred in failing to consider my mitigation.
13. The Appellant prayed that his appeal be allowed, sentence be set aside, his conviction be quashed and he be set free .
F. ANALYSIS & DETRMINATION
14. The being the first appeal, this court is as a matter of law enjoined to analyze and re-evaluate a fresh all the evidence adduced before the lower court and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses. See Okeno versus Republic (1072) EA 32, Pandya versus Republic (1957) EA 336) &Shantital M Ruwala versus Republic (1957) EA 570, where the court of appeal set out the duties of the first appellant court.
15. This court has examined the Record of Appeal, the grounds of appeal and given due consideration to the submissions by the Appellant and the respondent Counsel and find that the following issues arise for determination;
a) Whether the ingredients of the offence of committing an indecent Act with a child were proved.
b) Whether the sentence passed should be interfered with .
16. In criminal cases, the burden of proof lies with the prosecution and they have to persuade the court either by preponderance of evidence or beyond reasonable doubt, that the material facts that constitute their whole case are true, thus consequently have established their case and deserve to have judgment given in their favour. See Miller vs. Ministry of Pensions (1947) 2 All ER, 372, Republic Vs Edward Kirui (2014) eKLR, and Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 16 & Rex v Donovan [1934] 2 KB 498 (CCA).
17. The offence of attempted defilement is premised under section 9 of the Sexual Offences Act which states as follows:
9. Attempted defilement
(1)A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.
(2)A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.
(3) The provisions of section 8(5), (6), (7) and (8) shall apply mutatis mutandis to this section.
18. The term attempt is defined by section 388 of the Penal Code as follows: -
1. When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.
2.It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
3.It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence .”
19. In Daniel Simiyu Wanyonyi V Republic (2019) KEHC 10487 (KLR) the court held that;
“ The above section brings out the two main ingredients of an attempted offence; the mens rea which constitutes the intention and the actus rea which constitutes the overt act towards the execution of the intention. The prosecution in an offence of attempted defilement must prove the other ingredients of the offence of defilement except penetration; they must prove age, of the complainant, positive identification of the accused, and then prove steps taken by the accused to execute the defilement which did not succeed.”
22. In Isaack Ali Isaack V Republic (2020) KECA 699 (KLR) , the court of Appeal, while discerning the element of “actus reus” relied on the case of Francis Mutuku Nzangi Vs Republic (2013) Eklr , where it was held that;
“ ……….if a person conceives an idea or plan to commit an offence and sets out to effectuate the intention by taking definite steps or puts in motion a chain of events or state of things calculated to attain that objective as manifested by some open and discernible act or acts but fails to achieve his objective, he will be guilty only of an attempt to commit the offence. The attempt is proved whether or not that person did all the acts necessary to perfect the offence and quite irrespective of what intervening act or change of heart may have aborted the fulfilment. It also matters not that circumstances did in fact exist, unbeknown to the person that would have rendered his success impossible.”
23. Thus, the prosecution in an offence of attempted defilement must prove the other ingredients of the offence of defilement except penetration; they must prove the age of the complainant, positive identification of the assailant, and then prove steps taken by the assailant to execute the defilement which did not succeed. Attempted defilement is where there was failed defilement, because there was no penetration.
i) Age
24. The first element is age. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” (emphasis added)
25. In the case of Francis Omuromi Vs. Uganda, Court of Appeal Criminal Appeal No.2 of 2000 it was held inter alia that:
“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 be proved by birth certificate, the victim’s parents or guardian and by observation and common sense….”
26. The Age Assessment Report produced by PW 5 indicated that PW 1 was a child between 4-5 years. Additionally, from the record, the Medical Examination Report showed that PW 1 was 4 years old. Age was thus sufficiently proved.
ii) Identification
27. PW2 confirmed that on the material day at about 3pm she was on her way to hospital and as she passed by her neighbour’s house, she heard a child scream from inside the neighbor’s house, saying “ leave me alone ” in Rendille language. Instinctively, she rushed to the said house and saw PW1 holding her dress, which was worn over trousers, While the Appellant had his trousers pulled down to his thighs. However, on seeing her, the appellant had pushed her aside and ran outside but was arrested shortly thereafter by members of the public. The Appellant also in his defence stated that at the alleged time of the offence, he was showering in the house when PW 1 walked in. It was then that he chased her away and she began crying. This was therefore a case of recognition and thus identification was sufficiently proved.
iii) Whether “Actus Reus” was proved
28. The appellant was luckily passing by her neighbour’s house, when she heard PW1 scream, that “ leave me alone ” in Rendile language and upon entry to the said house, found the accused red handed having pulled his trousers down to the knee level. The surrounding circumstances including the child’s distress, the Appellant’s state of undressing, and his flight upon being found in a compromising position, demonstrate without doubt the he had intended to defile PW1 and his actions went beyond mere preparation, thereby satisfying the ingredients of attempted defilement under Section 9 of the Sexual Offences Act .
29. His Appeal against conviction, thus fails.
iv) Sentencing
30. The principles guiding interference with sentencing by the appellate court were properly set out in S Vrs Malgas (1) SACR 469(SCA) at para 12 , where it was held that;
“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 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 marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate ”.
31. 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. The salutary principle is that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by the sentencing court. In my view, this includes the terms and conditions imposed by the sentencing court on how or when the sentence is to be served.”
32. The appellant was sentence to serve a term of ten (10) years, which is the minimum sentence as provided for under section 9(2)of the Sexual Offences Act . In Republic Vs Joshua Gichuki Mwangi; Intiative for strategic litigation in Africa (ISLA) & 3 others (Amicus Curiae),{2024} KESC 34 (KLR) the Supreme court reiterated its decision in Muruatetu II that the sentences in the Sexual offences Act were legal and went on to overturn a reduction of sentence imposed by the Court of Appeal.
33. It has not been shown that the said sentence passed was excessive and/or harsh nor was there any misdirection by the trial court in handing down the same. Be that as it may, the trial court erred when he did not consider the period the appellant was held in remand. The said sentence, thus shall run from 7 th July 2025 when the Appellant was arrested in line with the provisions of Section 333(2) of the Criminal Procedure Code .
G. DISPOSITION
34. The upshot, having considered the entire record of appeal and parties’ submissions, I do find that the Appeal as against conviction and sentence fails and is hereby dismissed.
35. Right of Appeal 14 days.
36. It is so ordered.
Judgement read, signed and delivered in Open Court at MARSABIT this ……15TH………. day of JULY 2026 .
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this …15TH…….. Day of JULY, 2026.
In the presence of:-
…………PRESENT IN COURT……………………………..Appellant
…………MR MBURUGU…………………………..For O.D.P.P
…………JARSO………………………..Court Assistant
MARSABIT HCCR APPEAL NO E005 OF 20262
IN THE HIGH COURT AT MARSABIT
CRIMINAL APPEAL NUMBER E005 OF KENYA
KENNA MIRCHIGAN………………………………………..………APPELLANT
VERSUS
REPUBLIC………………………………………...………………..RESPONDENT
( Being an appeal arising from the conviction and sentence delivered on 29.01.2026, by Hon S.K Arome (PM) in Marsabit MCSO No E009 of 2025)
BETWEEN
REPUBLIC…………………………….………..…………………..PROSECUTOR
VERSUS
KENNA MIRCHIGAN……………………………………….…………ACCUSED
JUDGEMENT
A. INTRODUCTION
1. The Appellant was charged with the offence of attempted defilement contrary to section 9 (1) (2) of the Sexual Offences Act No 3 of 2006 . The particulars of the offence were that on 7 th day of July 2025 at Hula Hula area in Marsabit central sub county within Marsabit County, intentionally attempted to cause his penis to penetrate the vagina of A.A a child aged 4 years.
2. In the alternative, he was charged with the offence of committing an indecent Act with a child contrary to section 11(1) of the Sexual Offences Act, No 3 of 2006. The particulars of the offence were that on 7th day of July 2025 at Hula Hula area in Marsabit central sub county within Marsabit County, he intentionally attempted to cause his penis to penetrate the vagina of A.A a child aged 4 years.
3. The Appellant took plea and pleaded not guilty to the charges.
B. PROSECUTION CASE
4. PW 1. AA underwent voir dire examination and gave unsworn evidence. She stated that she lived with her mother at Kargi, and confirmed that she did not know the appellant, he had never carried her before nor had he bought her anything.PW 2. Ahadho Galgalo testified that on 07.07.2025 at about 3.00 p.m. she was feeling unwell and decided to go to hospital. She passed by her neighbour’s house and found the neighbours children playing outside under the tree’s and left her child to play with them.
5. She went back to her house to prepare and while enroute to the main road, as she passed by her neighbour’s house, she heard PW1 screaming from inside the said house, saying “ leave me alone ” in Rendille language. She rushed into the said house and discovered that PW1, was inside holding her dress, which was worn over a trouser. The Appellant, too was therein with his trousers pulled down to his thighs. However, on seeing her he pushed her aside and ran outside. Thereafter, she held the child and walked out screaming, which act, attracted neighbors who came to check on what was happening. They inspected the child and noted that she was fine and had not been abused, though her trousers were wet, and importantly, the accused had not removed them. Later, the child’s grandmother arrived and was informed of the incident that had occurred.
6. She reiterated her earlier evidence, that she had found the accused inside the house, alone with the child, and he was a person well known to her since they were neighbours and stressed that she did not have any grudge against him. During cross examination she reaffirmed that she found the Appellant with his trouser pulled down to thighs level at his sister’s house together with PW 1 who was crying.
7. PW 3 Keisimu Arandidhe confirmed that PW 1 was her granddaughter and further stated that, when the incident happened, she was away from home and when she returned, she found her neighbours had gathered within her home and were agitated. They informed her that the accused had attempted to defile PW1 within her house and upon examining her granddaughter, she confirmed that she was okay. They proceeded to report the matter to the police and had the child examined at the hospital.
8. PW4 Abdi Halkano Godana stated that she was a clinical officer based at Marsabit County Referral hospital, and had examined PW1 on 07.07.2025. she noted that the Minor did not have any laceration or injuries on the labia minora/majora. The hymen was intact and there were no blood stains or infection. She filled in the P3 form and PRC form and produced them into evidence.
9. PW5 Corporal Madina Ano attached to Marsabit police station, also testified and confirmed that on 07.07.2025 this case was reported and minuted to her by the OCS. By then, the Appellant had been arrested by members of public and was in custody. She recorded witness statements and had PW1 examined at the county referral hospital and upon conclusion of her investigations, she preferred the charges before court. She also produced the age assessment report of the minor as Exhibit P3.
C. DEFENCE CASE
10. The appellant was placed on his defence and opted to give sworn evidence. He denied attempting to defile PW 1 on the material day or on any other day and insisted that he had been framed by PW 2. He further confirmed that had just showered and when he came out, he saw the child and chased the child away, causing her to cry. PW2 heard the child cry and came to check on what was happening, but the truth was that he did not touch PW1 and this was confirmed by the doctor who examined the said child. He thus urged the court to release him.
D. JUDGEMENT
11. The learned trial magistrate considered all the evidence adduced and found the Appellant guilty of the offence of attempted defilement and proceeded to convict him under Section 215 of the criminal procedure code . After mitigation, the trial court sentenced the Appellant to serve ten years imprisonment.
E. THE APPEAL
12. Dissatisfied by the conviction and sentence passed, the Appellant filed his petition of appeal and raised the following grounds of Appeal that;
a. THAT the learned trial magistrate erred in law and fact by failing to note that the prosecution failed to prove their case beyond reasonable doubt.
b. THAT the learned trial magistrate erred in law and facts by failing to note that the sentence passed was harsh and excessive in the circumstances of this case
c. THAT the learned trial magistrate erred in failing to consider my mitigation.
13. The Appellant prayed that his appeal be allowed, sentence be set aside, his conviction be quashed and he be set free .
F. ANALYSIS & DETRMINATION
14. The being the first appeal, this court is as a matter of law enjoined to analyze and re-evaluate a fresh all the evidence adduced before the lower court and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses. See Okeno versus Republic (1072) EA 32, Pandya versus Republic (1957) EA 336) &Shantital M Ruwala versus Republic (1957) EA 570, where the court of appeal set out the duties of the first appellant court.
15. This court has examined the Record of Appeal, the grounds of appeal and given due consideration to the submissions by the Appellant and the respondent Counsel and find that the following issues arise for determination;
a) Whether the ingredients of the offence of committing an indecent Act with a child were proved.
b) Whether the sentence passed should be interfered with .
16. In criminal cases, the burden of proof lies with the prosecution and they have to persuade the court either by preponderance of evidence or beyond reasonable doubt, that the material facts that constitute their whole case are true, thus consequently have established their case and deserve to have judgment given in their favour. See Miller vs. Ministry of Pensions (1947) 2 All ER, 372, Republic Vs Edward Kirui (2014) eKLR, and Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 16 & Rex v Donovan [1934] 2 KB 498 (CCA).
17. The offence of attempted defilement is premised under section 9 of the Sexual Offences Act which states as follows:
9. Attempted defilement
(1)A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.
(2)A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.
(3) The provisions of section 8(5), (6), (7) and (8) shall apply mutatis mutandis to this section.
18. The term attempt is defined by section 388 of the Penal Code as follows: -
1. When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.
2.It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
3.It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence .”
19. In Daniel Simiyu Wanyonyi V Republic (2019) KEHC 10487 (KLR) the court held that;
“ The above section brings out the two main ingredients of an attempted offence; the mens rea which constitutes the intention and the actus rea which constitutes the overt act towards the execution of the intention. The prosecution in an offence of attempted defilement must prove the other ingredients of the offence of defilement except penetration; they must prove age, of the complainant, positive identification of the accused, and then prove steps taken by the accused to execute the defilement which did not succeed.”
22. In Isaack Ali Isaack V Republic (2020) KECA 699 (KLR) , the court of Appeal, while discerning the element of “actus reus” relied on the case of Francis Mutuku Nzangi Vs Republic (2013) Eklr , where it was held that;
“ ……….if a person conceives an idea or plan to commit an offence and sets out to effectuate the intention by taking definite steps or puts in motion a chain of events or state of things calculated to attain that objective as manifested by some open and discernible act or acts but fails to achieve his objective, he will be guilty only of an attempt to commit the offence. The attempt is proved whether or not that person did all the acts necessary to perfect the offence and quite irrespective of what intervening act or change of heart may have aborted the fulfilment. It also matters not that circumstances did in fact exist, unbeknown to the person that would have rendered his success impossible.”
23. Thus, the prosecution in an offence of attempted defilement must prove the other ingredients of the offence of defilement except penetration; they must prove the age of the complainant, positive identification of the assailant, and then prove steps taken by the assailant to execute the defilement which did not succeed. Attempted defilement is where there was failed defilement, because there was no penetration.
i) Age
24. The first element is age. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” (emphasis added)
25. In the case of Francis Omuromi Vs. Uganda, Court of Appeal Criminal Appeal No.2 of 2000 it was held inter alia that:
“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 be proved by birth certificate, the victim’s parents or guardian and by observation and common sense….”
26. The Age Assessment Report produced by PW 5 indicated that PW 1 was a child between 4-5 years. Additionally, from the record, the Medical Examination Report showed that PW 1 was 4 years old. Age was thus sufficiently proved.
ii) Identification
27. PW2 confirmed that on the material day at about 3pm she was on her way to hospital and as she passed by her neighbour’s house, she heard a child scream from inside the neighbor’s house, saying “ leave me alone ” in Rendille language. Instinctively, she rushed to the said house and saw PW1 holding her dress, which was worn over trousers, While the Appellant had his trousers pulled down to his thighs. However, on seeing her, the appellant had pushed her aside and ran outside but was arrested shortly thereafter by members of the public. The Appellant also in his defence stated that at the alleged time of the offence, he was showering in the house when PW 1 walked in. It was then that he chased her away and she began crying. This was therefore a case of recognition and thus identification was sufficiently proved.
iii) Whether “Actus Reus” was proved
28. The appellant was luckily passing by her neighbour’s house, when she heard PW1 scream, that “ leave me alone ” in Rendile language and upon entry to the said house, found the accused red handed having pulled his trousers down to the knee level. The surrounding circumstances including the child’s distress, the Appellant’s state of undressing, and his flight upon being found in a compromising position, demonstrate without doubt the he had intended to defile PW1 and his actions went beyond mere preparation, thereby satisfying the ingredients of attempted defilement under Section 9 of the Sexual Offences Act .
29. His Appeal against conviction, thus fails.
iv) Sentencing
30. The principles guiding interference with sentencing by the appellate court were properly set out in S Vrs Malgas (1) SACR 469(SCA) at para 12 , where it was held that;
“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 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 marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate ”.
31. 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. The salutary principle is that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by the sentencing court. In my view, this includes the terms and conditions imposed by the sentencing court on how or when the sentence is to be served.”
32. The appellant was sentence to serve a term of ten (10) years, which is the minimum sentence as provided for under section 9(2)of the Sexual Offences Act . In Republic Vs Joshua Gichuki Mwangi; Intiative for strategic litigation in Africa (ISLA) & 3 others (Amicus Curiae),{2024} KESC 34 (KLR) the Supreme court reiterated its decision in Muruatetu II that the sentences in the Sexual offences Act were legal and went on to overturn a reduction of sentence imposed by the Court of Appeal.
33. It has not been shown that the said sentence passed was excessive and/or harsh nor was there any misdirection by the trial court in handing down the same. Be that as it may, the trial court erred when he did not consider the period the appellant was held in remand. The said sentence, thus shall run from 7 th July 2025 when the Appellant was arrested in line with the provisions of Section 333(2) of the Criminal Procedure Code .
G. DISPOSITION
34. The upshot, having considered the entire record of appeal and parties’ submissions, I do find that the Appeal as against conviction and sentence fails and is hereby dismissed.
35. Right of Appeal 14 days.
36. It is so ordered.
Judgement read, signed and delivered in Open Court at MARSABIT this ……15TH………. day of JULY 2026 .
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this …15TH…….. Day of JULY, 2026.
In the presence of:-
…………PRESENT IN COURT……………………………..Appellant
…………MR MBURUGU…………………………..For O.D.P.P
…………JARSO………………………..Court Assistant
MARSABIT HCCR APPEAL NO E005 OF 20262