' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KILGORIS
CRIMINAL APPEAL CASE NO. E008 OF 2024
OLETIMBAU MBENE....................................................................................APPELLANT
VS.
REPUBLIC................................................................................................RESPONDENT
JUDGMENT
On 13 th January 2022, the appellant was charged with the offence of defilement contrary to Section 8(1) as read together with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars were that on the 11 th day of January 2022 at Tuiyabei village in Mogor Location in Trans-Nzoiya Sub-county within Narok County intentionally caused his penis to penetrate the vagina of C.C a child aged 10 years.
He was convicted and sentenced on 8th September 2022 to serve 19 years imprisonment after mitigations. Dissatisfied by the conviction and sentence of the trial court thus lodged an appeal where he set 7 grounds:But essentially other list as items of grounds are argument on the sentence. Thus, the only discernible ground is.
THAT, the imposed sentence of 19 years imprisonment is harsh and punitive and unjust considering the new jurisprudential development.
Parties were directed to canvass appeal via submissions.
Appellant’s Submissions
The appellant submitted that, before imposing such a harsh and mandatory sentence, the court had the inherent powers and jurisdictions to interrogate the appellant’s claims since it was to form the basis of his conviction. The law stipulates clearly that first offenders should not be sentenced to serve maximum sentences, in this case the appellant was sentenced to serve 19 years imprisonment.
Considering the circumstances of the offence and bearing in mind that the appellant was 45 years the pre-sentencing report was essential in this case. Before sentencing the Learned Trial Magistrate did not call for a pre-sentencing.
It is evident from the record that the pre-sentencing report was not called and this was to be generally good and in favours of the appellant before giving out the sentence, since this was not done the appellant ought to have been given the benefit of doubt as held in WAITA MUNYOKI CASE, the authority of ELIZABETH WAITHEIGENI ATIMU AND OTHERS VS. REP 2018 eKLR.
Respondent’s Submission
The respondent submits that, to sustain a conviction in a defilement charge, as was held in Charles Wamukoya Karani Vs. Republic, quoted with approval by Aburili J. in Simon Oduor Oloo Vs. Republic (2022) eKLR, the prosecution has to establish the existence of the three ingredients constituting the offence. The court stated, “the critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
Age
PW4, the complainant, was unable to testify as she was unable to talk well nor use sign language. Thus, she stood down and never completed her testimony or was she cross examined by the appellant. So, the court relied on the evidence of the remaining witnesses to establish if the offence was proven.
PW1 was the victim’s mother. She stated that the victim was her 7 th born child and was aged 12 years old. She was in primary school. PW2 was the complainant’s neighbour. She also testified that the complainant was 12 years old. PW5, the clinical officer, produced the complainant’s age assessment report, dated 13 th January 2022, which indicated that the complainant was approximately 12 years of age. The appellant never contested the age of the victim.
In Francis Omuroni versus Uganda, Court of Appeal Criminal Appeal No. 2 of 2000, the court rendered itself as follows, “in defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only one who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence, age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense.”
PW2 stated that she went into a maize farm in company of PW3 and found the complainant lying on her belly and the appellant was defiling her. PW3 confirmed that they indeed entered the maize plantation and saw the victim naked and the complainant was defiling and physically assaulting her. They screamed for help and the complainant was rescued. (see page 9-11 of the typed proceedings)
PW5 was the clinical officer. He stated that the complainant exhibited the following significant signs upon examination:
She had bruises on the left part of the eye.
Her hymen was freshly broken and was still bleeding.
She had bruises on her genitalia.
Spermatozoa was seen on lab test.
She had puss cells but was not pregnant.
The following documents were produced by the witness:
PW s prosecution exhibit 1.
Treatment notes as prosecution exhibit 2.
Age assessment report as prosecution exhibit 5.
He made a conclusion that there was penetration based on the findings. (see page 14 of the typed proceedings)
PW1 states that she met her daughter (the complainant) coming out of a maize plantation while crying. Two women were screaming behind her saying that she (the complainant) had been raped. The complainant face had bit marks, sperm like substance and stool on her. She was also sweating a lot, had a running nose all signifying that she had cried a lot. Without washing her, she took her to the police station where the clothes she was wearing were retained. Her soiled clothes were produced as prosecution exhibit 3 and 4. (see page 4, 5 and 15 of the typed proceedings)
Penetration is proved through the evidence of the victim corroborated by the medical evidence. (see Onzare Vs. Republic (Criminal Appeal 15 of 2023) (2024) KEHC 494 (KLR) (25 January 2024) (judgment), para 23.)
Identification
According to PW2, the offence occurred at around 2.00 pm during the day. (see page 9 of the typed proceedings) according to PW3, it was around 3.00 pm (see page 10 of the typed proceedings. Clearly, the offence took place in broad day at about 2-3 pm. PW3 stated that she saw the appellant clearly during the incident. (see page 11 paragraph 5 of the typed proceedings) PW2 stated that she knew the appellant prior to the date of the incident by appearance, and she was among those who promptly arrested him as he tried to flee the scene of crime, after she caught him on the act red handed. (see page 9 of the typed proceedings)
Madan J.A in Anjononi and Others Vs. the Republic (1980) KLR, quoted in Daniel Muthomi Marigu & 4 Others Vs. Republic (2021) eKLR, held “.....this however was a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because is depends upon the personal knowledge of the assailant in some form or other.”
The Sentence was proper
Section (3) of the Sexual Offences Act, under which the appellant was convicted, provides that, “ a person who commits an act of defilement with a child between the age of eleven and fifteen years is liable upon conviction to imprisonment of a term of not less than twenty years.”
DETERMINATION
The appellant principally raised the sentence in his grounds of appeal and submissions.
However, has reviewed the evidence and found that the conviction was supported by evidence tendered beyond reasonable doubt. On sentence which is sole ground raised in the grounds of appeal, Section (3) of the Sexual Offences Act, under which the appellant was convicted, provides that, “a person who commits an act of defilement with a child between the age of eleven and fifteen years is liable upon conviction to imprisonment of a term of not less than twenty years.”
The sentence is the minimum prescribed by the law for conviction under section 8(1) as read with subsection 3) of the Sexual offences Act no 6 of 2006 LOK. In the case of supreme case of Judgment – Petition No. E018 of 2023 Republic v Joshua Gichuki Mwangi the Supreme Court has affirmed that mandatory sentences leave the court with no discretion, and they are applied as prescribed by law. The court held that, that mandatory sentences allow no discretion, while minimum sentences set a floor for sentencing and allow for discretion on a higher sentence.
The appellant was sentenced to 19 years instead of the minimum sentence of 20 years. If prosecution had sought enhancement, the court would have added appellant at least one year to level it at 20years mandatory minimum. The court therefore finds no merit and dismisses appeal accordingly.
DATED AND DELIVERED VIA MICROSOFT TEAM AT KILGORIS THIS 3RD DAY OF OCTOBER 2025.
HON. CHARLES KARIUKI
JUDGE
In the presence of
CA – Jerusha
'
IN THE HIGH COURT OF KENYA AT KILGORIS
CRIMINAL APPEAL CASE NO. E008 OF 2024
OLETIMBAU MBENE....................................................................................APPELLANT
VS.
REPUBLIC................................................................................................RESPONDENT
JUDGMENT
On 13 th January 2022, the appellant was charged with the offence of defilement contrary to Section 8(1) as read together with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars were that on the 11 th day of January 2022 at Tuiyabei village in Mogor Location in Trans-Nzoiya Sub-county within Narok County intentionally caused his penis to penetrate the vagina of C.C a child aged 10 years.
He was convicted and sentenced on 8th September 2022 to serve 19 years imprisonment after mitigations. Dissatisfied by the conviction and sentence of the trial court thus lodged an appeal where he set 7 grounds:But essentially other list as items of grounds are argument on the sentence. Thus, the only discernible ground is.
THAT, the imposed sentence of 19 years imprisonment is harsh and punitive and unjust considering the new jurisprudential development.
Parties were directed to canvass appeal via submissions.
Appellant’s Submissions
The appellant submitted that, before imposing such a harsh and mandatory sentence, the court had the inherent powers and jurisdictions to interrogate the appellant’s claims since it was to form the basis of his conviction. The law stipulates clearly that first offenders should not be sentenced to serve maximum sentences, in this case the appellant was sentenced to serve 19 years imprisonment.
Considering the circumstances of the offence and bearing in mind that the appellant was 45 years the pre-sentencing report was essential in this case. Before sentencing the Learned Trial Magistrate did not call for a pre-sentencing.
It is evident from the record that the pre-sentencing report was not called and this was to be generally good and in favours of the appellant before giving out the sentence, since this was not done the appellant ought to have been given the benefit of doubt as held in WAITA MUNYOKI CASE, the authority of ELIZABETH WAITHEIGENI ATIMU AND OTHERS VS. REP 2018 eKLR.
Respondent’s Submission
The respondent submits that, to sustain a conviction in a defilement charge, as was held in Charles Wamukoya Karani Vs. Republic, quoted with approval by Aburili J. in Simon Oduor Oloo Vs. Republic (2022) eKLR, the prosecution has to establish the existence of the three ingredients constituting the offence. The court stated, “the critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
Age
PW4, the complainant, was unable to testify as she was unable to talk well nor use sign language. Thus, she stood down and never completed her testimony or was she cross examined by the appellant. So, the court relied on the evidence of the remaining witnesses to establish if the offence was proven.
PW1 was the victim’s mother. She stated that the victim was her 7 th born child and was aged 12 years old. She was in primary school. PW2 was the complainant’s neighbour. She also testified that the complainant was 12 years old. PW5, the clinical officer, produced the complainant’s age assessment report, dated 13 th January 2022, which indicated that the complainant was approximately 12 years of age. The appellant never contested the age of the victim.
In Francis Omuroni versus Uganda, Court of Appeal Criminal Appeal No. 2 of 2000, the court rendered itself as follows, “in defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only one who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence, age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense.”
PW2 stated that she went into a maize farm in company of PW3 and found the complainant lying on her belly and the appellant was defiling her. PW3 confirmed that they indeed entered the maize plantation and saw the victim naked and the complainant was defiling and physically assaulting her. They screamed for help and the complainant was rescued. (see page 9-11 of the typed proceedings)
PW5 was the clinical officer. He stated that the complainant exhibited the following significant signs upon examination:
She had bruises on the left part of the eye.
Her hymen was freshly broken and was still bleeding.
She had bruises on her genitalia.
Spermatozoa was seen on lab test.
She had puss cells but was not pregnant.
The following documents were produced by the witness:
PW s prosecution exhibit 1.
Treatment notes as prosecution exhibit 2.
Age assessment report as prosecution exhibit 5.
He made a conclusion that there was penetration based on the findings. (see page 14 of the typed proceedings)
PW1 states that she met her daughter (the complainant) coming out of a maize plantation while crying. Two women were screaming behind her saying that she (the complainant) had been raped. The complainant face had bit marks, sperm like substance and stool on her. She was also sweating a lot, had a running nose all signifying that she had cried a lot. Without washing her, she took her to the police station where the clothes she was wearing were retained. Her soiled clothes were produced as prosecution exhibit 3 and 4. (see page 4, 5 and 15 of the typed proceedings)
Penetration is proved through the evidence of the victim corroborated by the medical evidence. (see Onzare Vs. Republic (Criminal Appeal 15 of 2023) (2024) KEHC 494 (KLR) (25 January 2024) (judgment), para 23.)
Identification
According to PW2, the offence occurred at around 2.00 pm during the day. (see page 9 of the typed proceedings) according to PW3, it was around 3.00 pm (see page 10 of the typed proceedings. Clearly, the offence took place in broad day at about 2-3 pm. PW3 stated that she saw the appellant clearly during the incident. (see page 11 paragraph 5 of the typed proceedings) PW2 stated that she knew the appellant prior to the date of the incident by appearance, and she was among those who promptly arrested him as he tried to flee the scene of crime, after she caught him on the act red handed. (see page 9 of the typed proceedings)
Madan J.A in Anjononi and Others Vs. the Republic (1980) KLR, quoted in Daniel Muthomi Marigu & 4 Others Vs. Republic (2021) eKLR, held “.....this however was a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because is depends upon the personal knowledge of the assailant in some form or other.”
The Sentence was proper
Section (3) of the Sexual Offences Act, under which the appellant was convicted, provides that, “ a person who commits an act of defilement with a child between the age of eleven and fifteen years is liable upon conviction to imprisonment of a term of not less than twenty years.”
DETERMINATION
The appellant principally raised the sentence in his grounds of appeal and submissions.
However, has reviewed the evidence and found that the conviction was supported by evidence tendered beyond reasonable doubt. On sentence which is sole ground raised in the grounds of appeal, Section (3) of the Sexual Offences Act, under which the appellant was convicted, provides that, “a person who commits an act of defilement with a child between the age of eleven and fifteen years is liable upon conviction to imprisonment of a term of not less than twenty years.”
The sentence is the minimum prescribed by the law for conviction under section 8(1) as read with subsection 3) of the Sexual offences Act no 6 of 2006 LOK. In the case of supreme case of Judgment – Petition No. E018 of 2023 Republic v Joshua Gichuki Mwangi the Supreme Court has affirmed that mandatory sentences leave the court with no discretion, and they are applied as prescribed by law. The court held that, that mandatory sentences allow no discretion, while minimum sentences set a floor for sentencing and allow for discretion on a higher sentence.
The appellant was sentenced to 19 years instead of the minimum sentence of 20 years. If prosecution had sought enhancement, the court would have added appellant at least one year to level it at 20years mandatory minimum. The court therefore finds no merit and dismisses appeal accordingly.
DATED AND DELIVERED VIA MICROSOFT TEAM AT KILGORIS THIS 3RD DAY OF OCTOBER 2025.
HON. CHARLES KARIUKI
JUDGE
In the presence of
CA – Jerusha
'