REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL APPEAL NO E032 OF 2024
MICHAEL AKUNDA……………….…………..………………………….APPELLANT
VERSUS
REPUBLIC…………………………………………….…………………..RESPONDENT
(Being an Appeal from the Judgment of Hon N. Moseti (PM) delivered at Hamisi in the Senior Principal Magistrate’s Court in Sexual Offence Case No E038 of 2024 on 11 th September 2024)
JUDGMENT
INTRODUCTION
1. The Appellant herein was charged with the offence of attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.
2. He pleaded guilty to the charge and Hon. N. Moseti (PM) convicted him of the main charge and sentenced him to life imprisonment.
3. Being dissatisfied with the said Judgement, on 18 th September 2024, he lodged an appeal herein. His Petition of Appeal was dated 13 th September 2024. He set out four (4) grounds of appeal.
4. His Written Submissions were dated 1 st July 2025 and filed on 7 th July 2025 while those of the Respondent were dated 30 th July 2025 and filed on 1 st August 2025. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect.
7. Having looked at the Appellant’s Petition of Appeal, his Written Submissions and those of the Respondent, this court noted that the issues that had been placed before it for determination were as follows:-
a. Whether or not the Appellant’s plea of guilty was unequivocal; and
b. Whether the sentence meted by the Trial Court was lawful and/or warranted .
8. The court therefore dealt with the said issues under the following distinct and separate heads.
I. WHETHER OR NOT THE APPELLANT’S PLEA WAS UNEQUIVOCAL
1. The Appellant submitted that the proceedings of 10 th June 2024 showed that he who was deaf and dumb and that he responded in Kiswahili and that he pleaded guilty. It also showed that the Trial Court warned him of the seriousness of the offence and its penalty and that he went ahead and confirmed his plea of guilty. He raised the question as to whether justice was done by the fact that a deaf man heard and a dumb man spoke.
2. On its part, the Respondent invoked Section 348 and cited the case of Olel-vs Republic [1989] KLR 444 where the Court in interpreting Section 348 of the Criminal Procedure Code stated that where a plea was unequivocal, an appeal against conviction could not lie. It was emphatic that the plea was unequivocal hence the Appellant erroneously submitted on conviction.
3. A perusal of the Trial Court record showed that the Appellant appeared in court on 4 th June 2024 for plea which was read to him but the Trial Court was informed that he was deaf. The trial Court proceeded to defer plea taking to 10 th June 2024 and directed that a sign language interpreter be provided.
4. On 10 th June 2024 it was recorded as follows:-
“Court-CRO and in Kiswahili to accused who replies; (Translated to Kiswahili by Alice Kagwiri C/A from Kapsabet Law Courts)
Accused in Kiswahili-It is true.
Court-Accused warned of the seriousness of the offence and informed of the sentence under S.O.A and charges read over afresh.
Court-CRO and to accused in Kiswahili who replies in Kiswahili (translated by Alice Kagwiri)
Accused-It is true.”
5. The case was set for further mention on 14 th June 2024 and on that date, the Appellant requested for the charges to be read afresh. The court went ahead and recorded as follows:-
“Court-CRO and E to Accused in Kiswahili who replies (translated to Kiswahili by C/C Kagwiri)
Accused-It is true
Court-plea of guilty is entered.”
6. The Prosecution then read the facts of the case and produced treatment notes, PRC Form, P3 Form and the Birth Certificate as exhibits in this case. The Accused responded and stated that the facts were correct. He was, therefore, convicted on his own plea of guilty.
7. The procedure for taking plea is provided under Section 207 of the Criminal Procedure Code which states as follows:-
1. The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he pleads not guilty, guilty or guilty subject to a plea agreement.
2. If the accused person admits the truth of the charge otherwise than by a plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary:
Provided that after conviction and before passing sentence or making any order the court may permit or require the complainant to outline to the court the facts upon which the charge is founded.”
8. The law and practice related to the taking and recording of pleas of guilt was stated in Adan vs Republic ( 1973) EA 445 at 446- where the court stated that the particulars of the charge were to be read to the accused in his own language or a language that he spoke and understood. It also stated that the trial court was expected to also explain the essential ingredients of the offence and if the accused admitted, the trial court was required to direct the prosecution to read the facts whereupon an accused should be given an opportunity to dispute or explain the facts. The law provided that in the event the accused was to admit the facts, the court was required to record a conviction.
9. In the instant case, it was clear that a deaf interpreter was brought to translate to the proceedings to the Appellant. One, Alice Kagwiri, a Court Assistant from Kapsabet Law Courts acted as an interpreter. Although it was not clear to this court what the acronym CRO stood for, it was from the proceedings of the lower court that the trial court made all efforts to provide the Appellant with a dead/dumb interpreter and in fact deferred the plea during the first court attendance.
10. From the foregoing circumstances, it was the view of this court that plea of guilty was unequivocal as the Trial Court followed the right procedure.
II. SENTENCE
11. The Appellant submitted that the sentence provided under Section 9(2) was ten (10) years imprisonment hence he was not aware of the criteria the Trial Court used when it sentenced him to life imprisonment. He argued that there were no aggravating circumstances to warrant such a sentence since the medical evidence indicated that the external genetalia was normal, hymen was intact and there were no bruises.
12. He referred this court to the case of Baruku Kazungu vs Republic (citation not given) where it was held that the sentence that was imposed had to match the offence. He also stated that sentence should respect human rights and fundamental freedoms as was stated in AO & 6 Others vs AG (citation not given). He was emphatic that maximum sentences could not be imposed on first offenders unless there were aggravating circumstances.
13. He cited Article 50(2)(p) of the Constitution of Kenya and stated that harsh and excessive sentence infringed on his right to fair trial. He was emphatic that the life imprisonment was undignified and disproportionate to the facts and circumstances of the case. He submitted that the said sentence was harsh and excessive and contravened his rights to freedom and security under Article 29 (d) and (f) of the Constitution.
14. He urged this court to re-evaluate the facts of the case and circumstances and in this regard, referred this court to the case of Kiilu & Another vs Republic (2005) IKLR 174 where it was held that the duty of the first appellate court was to evaluate the evidence afresh and draw its conclusions.
15. He contended that the Trial Court only looked at the principle of deterrence and retribution at the expense of other over-riding objectives like rehabilitation and reformation which meant that there was no balance in the overall sentencing goals. On this, he relied on the case of Republic vs Felix Mandalito Keke CRA No 404 of 2010 where it was held that consideration of public interest when sentencing offenders had to go beyond consideration of deterrence.
16. He urged this court to interfere with the sentence and he placed reliance on the case of Benard Kimani Gacheru vs Republic (2002) eKLR where the court stated that the appellate court would not easily interfere with the sentence unless, that the sentence was manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factors, or took into account some wrong material factor, or acted on wrong principle.
17. He asserted that the Trial Court overlooked some material factors and the sentence was manifestly excessive in the circumstances of the case. He stated that it was illogical to mete out a maximum penalty of a life sentence where the minimum sentence was ten (10) years imprisonment despite there being no aggravating factors. He urged this court to set aside the sentence of life imprisonment and be substituted with a very least prescribed form of a punishment preferably ten (10) years imprisonment.
18. On its part, the Respondent invoked Section 9(1) and (2) of the Sexual Offences Act and stated that the minimum sentence was ten (10) imprisonment which meant that the court had the discretion and could increase the same depending on aggravating factors. It asserted that the victim was seven (7) years and the Trial Court also considered the Pre-sentence Report which was not favourable and therefore imposed life imprisonment.
19. It was emphatic that the sentence was proper and lawful and there were no good reasons to warrant a review. It relied on the case Benard Kimani Gacheru vs Republic (Supra). It also cited Republic vs Jagani & Another (2001) KLR 590 where the court held that the purpose of sentence was to disapprove or denounce unlawful conduct as a deterrent to deter the offender from committing the offence, to separate offenders from society if necessary to assist in rehabilitation of offenders, and in rehabilitation by providing for reparation for harm done to victims in particular and to society in general. It thus urged this court to dismiss the Appeal herein.
20. While sentencing him, the Trial Court considered the Probation Report which it stated it was not favourable. The Appellant was charged with the offence of attempted defilement. Section 9(2) of the Sexual Offences Act Cap 62A (Laws of Kenya) provides that:-
“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.”
21. Notably, an appellate court will not disturb the trial court’s discretion on sentence unless it is manifestly excessive or 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 was of the view that the sentence was heavy and that it might itself have passed a lighter sentence, that was not in itself a sufficient ground for it to interfere with the discretion of the trial court, a position that was set out in the case of Bernard Kimani Gacheru vs Republic (Supra) .
22. Notably, in the case of Joshua Gichuki Mwangi vs Republic [2022] eKLR , the Court of Appeal reiterated the reasoning in the case of Dismas Wafula Kilwake vs Republic [2018] eKLR where it held that Section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing offences and held that it was impermissible for the legislature to take away the discretion of courts and to compel them to mete out sentences that were disproportionate to what would otherwise be an appropriate sentence.
23. However, in a decision that was delivered on 12 th July 2024 in Joshua Gichuki Mwangi vs Republic [2024] KESC 34 (KLR) , the Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi vs Republic (Supra) and stated that the Court of Appeal had no jurisdiction to exercise discretion on sentences that had a mandatory minimum sentence.
9. Notably, Section 9(2) of the Sexual Offences Act provided for a sentence of ten (10) years imprisonment as the mandatory minimum sentence. While sentencing the Appellant herein, the Trial Court did not mention the reasons why it enhanced the sentence to life imprisonment. As the Trial Court did not explain which aggravating factors it considered and this court did not see any aggravating circumstances , it was the view of this court that the enhanced sentence of life imprisonment was not justified as it was manifestly excessive warranting interference by this court.
10. Indeed, every accused person was entitled to the least prescribed sentence in line with Article 50(2)(p) of the Constitution of Kenya, 2010 that provides as follows:-
“Every accused person has the right to a fair trial, which includes the right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.”
24. Taking all the circumstances of this case into consideration, this court came to the conclusion that a sentence of ten (10) years, as the law provides, was adequate to punish the Appellant for the offence that he committed and deter him from committing similar offences and for the Complainant and the society to find retribution in that sentence.
25. As this court had now found a determinate sentence to have been appropriate herein, it was mandated to consider the period that the Appellant spent in remand while his trial was on going in line with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
26. The said Section 333(2) of the Criminal Procedure Code provides that:-
“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 ” (emphasis court).
27. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:-
“ The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:…
Time already spent in prison by the convict…”
28. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR .
29. A perusal of the Charge Sheet showed that the Appellant was arrested on 30 th May 2024 and he was sentenced on 11 th September 2024. This was a period that ought to be taken into consideration pursuant to Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
DISPOSITION
30. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal dated 13 th September 2024 and filed on 18 th September 2024 was partly merited and the same be and is hereby allowed on the aspect of sentence only. The Appellant’s conviction be and is hereby upheld as it was safe. However, the sentence of life imprisonment be and is hereby vacated and/or set aside and replaced with a sentence of ten (10) years imprisonment.
31. For the avoidance of doubt, the period the Appellant spent in custody between 30 th May 2024 and 10 th September 2024 be and is hereby taken into account while computing his sentence in accordance with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
32. It is so ordered.
DATED and DELIVERED at VIHIGA this 3 rd day of June 2026
J. KAMAU
JUDGE
HCCRA NO E032 OF 20242
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL APPEAL NO E032 OF 2024
MICHAEL AKUNDA……………….…………..………………………….APPELLANT
VERSUS
REPUBLIC…………………………………………….…………………..RESPONDENT
(Being an Appeal from the Judgment of Hon N. Moseti (PM) delivered at Hamisi in the Senior Principal Magistrate’s Court in Sexual Offence Case No E038 of 2024 on 11 th September 2024)
JUDGMENT
INTRODUCTION
1. The Appellant herein was charged with the offence of attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.
2. He pleaded guilty to the charge and Hon. N. Moseti (PM) convicted him of the main charge and sentenced him to life imprisonment.
3. Being dissatisfied with the said Judgement, on 18 th September 2024, he lodged an appeal herein. His Petition of Appeal was dated 13 th September 2024. He set out four (4) grounds of appeal.
4. His Written Submissions were dated 1 st July 2025 and filed on 7 th July 2025 while those of the Respondent were dated 30 th July 2025 and filed on 1 st August 2025. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect.
7. Having looked at the Appellant’s Petition of Appeal, his Written Submissions and those of the Respondent, this court noted that the issues that had been placed before it for determination were as follows:-
a. Whether or not the Appellant’s plea of guilty was unequivocal; and
b. Whether the sentence meted by the Trial Court was lawful and/or warranted .
8. The court therefore dealt with the said issues under the following distinct and separate heads.
I. WHETHER OR NOT THE APPELLANT’S PLEA WAS UNEQUIVOCAL
1. The Appellant submitted that the proceedings of 10 th June 2024 showed that he who was deaf and dumb and that he responded in Kiswahili and that he pleaded guilty. It also showed that the Trial Court warned him of the seriousness of the offence and its penalty and that he went ahead and confirmed his plea of guilty. He raised the question as to whether justice was done by the fact that a deaf man heard and a dumb man spoke.
2. On its part, the Respondent invoked Section 348 and cited the case of Olel-vs Republic [1989] KLR 444 where the Court in interpreting Section 348 of the Criminal Procedure Code stated that where a plea was unequivocal, an appeal against conviction could not lie. It was emphatic that the plea was unequivocal hence the Appellant erroneously submitted on conviction.
3. A perusal of the Trial Court record showed that the Appellant appeared in court on 4 th June 2024 for plea which was read to him but the Trial Court was informed that he was deaf. The trial Court proceeded to defer plea taking to 10 th June 2024 and directed that a sign language interpreter be provided.
4. On 10 th June 2024 it was recorded as follows:-
“Court-CRO and in Kiswahili to accused who replies; (Translated to Kiswahili by Alice Kagwiri C/A from Kapsabet Law Courts)
Accused in Kiswahili-It is true.
Court-Accused warned of the seriousness of the offence and informed of the sentence under S.O.A and charges read over afresh.
Court-CRO and to accused in Kiswahili who replies in Kiswahili (translated by Alice Kagwiri)
Accused-It is true.”
5. The case was set for further mention on 14 th June 2024 and on that date, the Appellant requested for the charges to be read afresh. The court went ahead and recorded as follows:-
“Court-CRO and E to Accused in Kiswahili who replies (translated to Kiswahili by C/C Kagwiri)
Accused-It is true
Court-plea of guilty is entered.”
6. The Prosecution then read the facts of the case and produced treatment notes, PRC Form, P3 Form and the Birth Certificate as exhibits in this case. The Accused responded and stated that the facts were correct. He was, therefore, convicted on his own plea of guilty.
7. The procedure for taking plea is provided under Section 207 of the Criminal Procedure Code which states as follows:-
1. The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he pleads not guilty, guilty or guilty subject to a plea agreement.
2. If the accused person admits the truth of the charge otherwise than by a plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary:
Provided that after conviction and before passing sentence or making any order the court may permit or require the complainant to outline to the court the facts upon which the charge is founded.”
8. The law and practice related to the taking and recording of pleas of guilt was stated in Adan vs Republic ( 1973) EA 445 at 446- where the court stated that the particulars of the charge were to be read to the accused in his own language or a language that he spoke and understood. It also stated that the trial court was expected to also explain the essential ingredients of the offence and if the accused admitted, the trial court was required to direct the prosecution to read the facts whereupon an accused should be given an opportunity to dispute or explain the facts. The law provided that in the event the accused was to admit the facts, the court was required to record a conviction.
9. In the instant case, it was clear that a deaf interpreter was brought to translate to the proceedings to the Appellant. One, Alice Kagwiri, a Court Assistant from Kapsabet Law Courts acted as an interpreter. Although it was not clear to this court what the acronym CRO stood for, it was from the proceedings of the lower court that the trial court made all efforts to provide the Appellant with a dead/dumb interpreter and in fact deferred the plea during the first court attendance.
10. From the foregoing circumstances, it was the view of this court that plea of guilty was unequivocal as the Trial Court followed the right procedure.
II. SENTENCE
11. The Appellant submitted that the sentence provided under Section 9(2) was ten (10) years imprisonment hence he was not aware of the criteria the Trial Court used when it sentenced him to life imprisonment. He argued that there were no aggravating circumstances to warrant such a sentence since the medical evidence indicated that the external genetalia was normal, hymen was intact and there were no bruises.
12. He referred this court to the case of Baruku Kazungu vs Republic (citation not given) where it was held that the sentence that was imposed had to match the offence. He also stated that sentence should respect human rights and fundamental freedoms as was stated in AO & 6 Others vs AG (citation not given). He was emphatic that maximum sentences could not be imposed on first offenders unless there were aggravating circumstances.
13. He cited Article 50(2)(p) of the Constitution of Kenya and stated that harsh and excessive sentence infringed on his right to fair trial. He was emphatic that the life imprisonment was undignified and disproportionate to the facts and circumstances of the case. He submitted that the said sentence was harsh and excessive and contravened his rights to freedom and security under Article 29 (d) and (f) of the Constitution.
14. He urged this court to re-evaluate the facts of the case and circumstances and in this regard, referred this court to the case of Kiilu & Another vs Republic (2005) IKLR 174 where it was held that the duty of the first appellate court was to evaluate the evidence afresh and draw its conclusions.
15. He contended that the Trial Court only looked at the principle of deterrence and retribution at the expense of other over-riding objectives like rehabilitation and reformation which meant that there was no balance in the overall sentencing goals. On this, he relied on the case of Republic vs Felix Mandalito Keke CRA No 404 of 2010 where it was held that consideration of public interest when sentencing offenders had to go beyond consideration of deterrence.
16. He urged this court to interfere with the sentence and he placed reliance on the case of Benard Kimani Gacheru vs Republic (2002) eKLR where the court stated that the appellate court would not easily interfere with the sentence unless, that the sentence was manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factors, or took into account some wrong material factor, or acted on wrong principle.
17. He asserted that the Trial Court overlooked some material factors and the sentence was manifestly excessive in the circumstances of the case. He stated that it was illogical to mete out a maximum penalty of a life sentence where the minimum sentence was ten (10) years imprisonment despite there being no aggravating factors. He urged this court to set aside the sentence of life imprisonment and be substituted with a very least prescribed form of a punishment preferably ten (10) years imprisonment.
18. On its part, the Respondent invoked Section 9(1) and (2) of the Sexual Offences Act and stated that the minimum sentence was ten (10) imprisonment which meant that the court had the discretion and could increase the same depending on aggravating factors. It asserted that the victim was seven (7) years and the Trial Court also considered the Pre-sentence Report which was not favourable and therefore imposed life imprisonment.
19. It was emphatic that the sentence was proper and lawful and there were no good reasons to warrant a review. It relied on the case Benard Kimani Gacheru vs Republic (Supra). It also cited Republic vs Jagani & Another (2001) KLR 590 where the court held that the purpose of sentence was to disapprove or denounce unlawful conduct as a deterrent to deter the offender from committing the offence, to separate offenders from society if necessary to assist in rehabilitation of offenders, and in rehabilitation by providing for reparation for harm done to victims in particular and to society in general. It thus urged this court to dismiss the Appeal herein.
20. While sentencing him, the Trial Court considered the Probation Report which it stated it was not favourable. The Appellant was charged with the offence of attempted defilement. Section 9(2) of the Sexual Offences Act Cap 62A (Laws of Kenya) provides that:-
“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.”
21. Notably, an appellate court will not disturb the trial court’s discretion on sentence unless it is manifestly excessive or 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 was of the view that the sentence was heavy and that it might itself have passed a lighter sentence, that was not in itself a sufficient ground for it to interfere with the discretion of the trial court, a position that was set out in the case of Bernard Kimani Gacheru vs Republic (Supra) .
22. Notably, in the case of Joshua Gichuki Mwangi vs Republic [2022] eKLR , the Court of Appeal reiterated the reasoning in the case of Dismas Wafula Kilwake vs Republic [2018] eKLR where it held that Section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing offences and held that it was impermissible for the legislature to take away the discretion of courts and to compel them to mete out sentences that were disproportionate to what would otherwise be an appropriate sentence.
23. However, in a decision that was delivered on 12 th July 2024 in Joshua Gichuki Mwangi vs Republic [2024] KESC 34 (KLR) , the Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi vs Republic (Supra) and stated that the Court of Appeal had no jurisdiction to exercise discretion on sentences that had a mandatory minimum sentence.
9. Notably, Section 9(2) of the Sexual Offences Act provided for a sentence of ten (10) years imprisonment as the mandatory minimum sentence. While sentencing the Appellant herein, the Trial Court did not mention the reasons why it enhanced the sentence to life imprisonment. As the Trial Court did not explain which aggravating factors it considered and this court did not see any aggravating circumstances , it was the view of this court that the enhanced sentence of life imprisonment was not justified as it was manifestly excessive warranting interference by this court.
10. Indeed, every accused person was entitled to the least prescribed sentence in line with Article 50(2)(p) of the Constitution of Kenya, 2010 that provides as follows:-
“Every accused person has the right to a fair trial, which includes the right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.”
24. Taking all the circumstances of this case into consideration, this court came to the conclusion that a sentence of ten (10) years, as the law provides, was adequate to punish the Appellant for the offence that he committed and deter him from committing similar offences and for the Complainant and the society to find retribution in that sentence.
25. As this court had now found a determinate sentence to have been appropriate herein, it was mandated to consider the period that the Appellant spent in remand while his trial was on going in line with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
26. The said Section 333(2) of the Criminal Procedure Code provides that:-
“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 ” (emphasis court).
27. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:-
“ The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:…
Time already spent in prison by the convict…”
28. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR .
29. A perusal of the Charge Sheet showed that the Appellant was arrested on 30 th May 2024 and he was sentenced on 11 th September 2024. This was a period that ought to be taken into consideration pursuant to Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
DISPOSITION
30. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal dated 13 th September 2024 and filed on 18 th September 2024 was partly merited and the same be and is hereby allowed on the aspect of sentence only. The Appellant’s conviction be and is hereby upheld as it was safe. However, the sentence of life imprisonment be and is hereby vacated and/or set aside and replaced with a sentence of ten (10) years imprisonment.
31. For the avoidance of doubt, the period the Appellant spent in custody between 30 th May 2024 and 10 th September 2024 be and is hereby taken into account while computing his sentence in accordance with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
32. It is so ordered.
DATED and DELIVERED at VIHIGA this 3 rd day of June 2026
J. KAMAU
JUDGE
HCCRA NO E032 OF 20242