REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL APPEAL NO E046 OF 2024
PETER CHAMWADA …………………………..………………………….APPELLANT
VERSUS
REPUBLIC…………………………………………….…………………..RESPONDENT
(Being an Appeal from the Judgment of Hon S. Manyura (RM) delivered at Hamisi in the Principal Magistrate’s Court in Sexual Offence Case No 70 of 2021 on 18 th November 2022)
INTRODUCTION
1. The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No 3 of 2006 (count I). 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. In count II, he was charged with the offence of incest contrary to Section 20(1) of the Sexual Offences Act.
2. The Learned Trial Magistrate, Hon S. Manyura (RM), convicted him of the offence of defilement and sentenced him to twenty (20) years imprisonment.
3. Being dissatisfied with the said Judgement, on 20th December 2024, he lodged an appeal herein. His Petition of Appeal was dated 19th December 2024. He set out three (3) grounds of appeal.
4. His Written Submissions were dated 15th August 2025 and filed on 3rd September 2025 while those of the Respondent were dated 10th September 2025 and filed on 14th October 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 only issue that had been placed before it for determination was whether or not the Prosecution proved its case beyond reasonable doubt. Grounds of Appeal Nos (1), (2), and (3) of the Petition of Appeal were, therefore, dealt with under this head as they were all related.
I. PROOF OF THE PROSECUTION’S CASE
8. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement.
9. It is now settled that the ingredients of the offence of defilement are proof of the complainant’s age, proof of penetration, and identification of the perpetrator, as was held in the case of George Opondo Olunga vs Republic [2016] eKLR . This court dealt with the same under the following distinct and separate heads.
A. AGE
10. The Appellant did not submit on this issue. On its part, the Respondent submitted that the Charge Sheet indicated that the victim was eleven (11) years of age at the time of the commission of the offence as per the Age Assessment Report that PW 6 produced by PW 6 and, therefore, a minor at the time of the commission of the offence.
11. It relied on the case of Musyoki Mwakavi vs Republic[2014]eKLR, where it was held that in a charge of defilement, age of the minor could be proved by medical evidence, baptism card, school-leaving certificates, by the victim’s parents and/or guardians, observation, or common sense.
12. The Complainant (hereinafter referred to as “PW 1”) testified that she was eleven (11) years old and was going to Grade Six (6). No 239853 PC Wilbrodah was the Investigating Officer in this matter. She produced the Age Assessment Report dated 28th October 2021 that showed that PW 1 was aged eleven (11) years.
13. As the Appellant did not challenge the production of the aforesaid Age Assessment Report and/or rebut the said evidence by adducing evidence to the contrary, this court was satisfied that PW1 was a child at all material times. However, this court was unable to ascertain her exact age as Isaac Chelimo, who signed the Age Assessment Report on behalf of the Dental Specialist, did not explain what scientific assessment he conducted to conclude that PW 1 was aged eleven (11) years at the material time of the incident.
14. As the sentence of defilement was pegged on the age of a victim, this court found and held that the Prosecution did not prove PW 1’s age to the required standard, which in criminal cases was proof beyond reasonable doubt.
15. The case would have collapsed at this stage as age, identification of the perpetrator, and penetration had to be demonstrated to prove the offence of defilement. Having said so, this court noted that the Accused person had also been charged with the offence of incest, where the sentence was not dependent on the age of the victim. This court, therefore, proceeded to determine whether the ingredients of incest were proved using the evidence that was adduced, which were penetration and familial relationship between the victim and the perpetrator.
B. IDENTIFICATION
16. The Appellant did not submit on this issue. On its part, the Respondent set out the evidence of PW 1 and her teacher, Nancy Wanjiku Muganga (hereinafter referred to as “PW 2”), which showed that the Appellant was PW 1’s father. It also pointed out that in his defence, the Appellant confirmed that he was PW 1’s father.
17. The Appellant did not deny knowing PW 1. In his sworn evidence, he told the Trial Court that she was his child. As she and the Appellant knew each other, this court was satisfied that there could not have been any mistaken identity. Identification was by way of recognition.
C. PENETRATION
18. The Appellant submitted that the Prosecution failed to avail crucial witnesses to prove its case. He stated that PW 1’s siblings ought to have been called as witnesses, as she said that they were in the same room when he defiled her. He pointed out that his father, Benson Madaga (hereinafter referred to as “DW 2”), testified that PW 1 and the other children lived with his mother and hence, he would have known if PW 1 was defiled. He relied on the case of Bakare vs State (1987) 1 NWLR (PT 52) 579 and the case of Pius Arap Maina vs Republic [2013] eKLR, where the common thread was that the prosecution was required to prove its case beyond reasonable doubt and that if there was any doubt, then the case had to be decided in favour of the accused person.
19. He also referred this court to the case of Absolom Amboka Okila vs Republic [2020] eKLR, where the court held that the circumstances under which a defilement took place could not be ignored. He asserted that this was a case under Section 33 of the Sexual Offences Act No 3 of 2006, and the trial court was obliged to enquire into the circumstances surrounding the case. He also referred this court to the case of People vs Sandoval 314 N.E. 2nd 471-18 (N.Y. 1974), which interrogated the circumstances surrounding a sexual offence.
20. He further placed reliance on the case of O.K.K. vs Republic [2021] eKLR in which it was held that a trial court was mandated to enquire of the circumstances entailed dishonesty so as to impeach the credibility and reliability of witnesses.
21. On its part, the Respondent submitted that PW 1’s evidence was corroborated by the evidence of the Clinical Officer, Ibrahim Vonyoi (hereinafter referred to as “PW 5 ”) who observed that the hymen was torn, the remnants were swollen, swelling and bruises on the labia minora, and discharge from the vagina. It pointed that he produced the Treatment notes, the laboratory Form, P3 Form and PRC Form to prove penetration.
22. According to PW 1, between September and October 2021, her mother left with her brother and sister. She testified that the Appellant came to their room and defiled her three (3) times. She told the Trial Court that her siblings were asleep when the defilement occurred and that the Appellant would beat her when she cried.
23. She said that she feared going to school, but the Appellant forced her to go. She averred that when she went to school, she informed PW 2 and Teacher Alice (hereinafter referred to as “PW 3”) of what had transpired. She averred that they took her to the hospital, where she was examined and thereafter taken to Kakamega Children’s Home. She positively identified the Appellant as her perpetrator. He did not cross-examine her.
24. Both PW 2, PW 3, and a Social Worker, Rael Khakeu Malenya (hereinafter referred to as “PW 4”) corroborated PW 1’s evidence. On his part, PW 5 confirmed the injuries that PW 1 suffered on her genitalia, and he concluded that the said injuries were consistent with penetration.
25. Notably, the proviso of Section 124 of the Evidence Act states that:-
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth ( emphasis) .”
26. Even so, a trial court was required to exercise great caution before relying on the evidence of a single witness to convict an accused person, as it would be one person’s word against another's.
27. Section 143 of the Evidence Act provides as follows:-
“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. “
28. Indeed, there was no requirement that the prosecution call a particular number of witnesses to prove a fact. However, despite having this liberty, failure to call witnesses to fill gaps in its case was detrimental to its case. In other words, where the prosecution failed to call crucial witnesses, an inference could be made that their evidence would have been adverse to its case. Even so, the inference could only be made where the evidence was not adequate.
29. The Appellant’s submissions that failure to call PW 1’s siblings as witnesses was fatal was neither here nor there, as PW 1 testified that her siblings were asleep when he defiled her. Although the Appellant denied committing the offence and stated that he was framed, it was evident that PW 1’s evidence that she was defiled on the material night was corroborated by PW 2, PW 3, PW 4, and PW 5’s medical evidence. The evidence that was adduced by the Prosecution outweighed the evidence that the Appellant tendered in court.
30. It was the view of this court that the evidence before the trial court was sufficient to form a basis for conviction as the Prosecution proved their case to the required standard, which in criminal cases was proof beyond reasonable doubt.
31. In the premises foregoing, Grounds of Appeal Nos (1), (2) and (3) of the Petition of Appeal were not merited, and the same be and are hereby dismissed.
II. SENTENCE
32. Although the Appellant did not list the severity of his sentence as a Ground of Appeal, he raised the issue in his Written Submissions. He urged this court to set aside the sentence of twenty (20) years or to reduce the same to a lesser sentence or to mete out against him a non-custodial sentence.
33. The Respondent averred that he was convicted under Section 8(2) of the Sexual Offences Act and faulted the Trial Court for having meted out to him an illegal sentence of twenty (20) years. It urged this court to enhance the sentence to life imprisonment.
34. Notably, the Appellant was charged under Section 8(2) of the Sexual Offences Act Cap 63A (Laws of Kenya). The same provides as follows:-
“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.”
35. The Trial Court could not, however, be faulted for having sentenced the Appellant to twenty (20) years imprisonment, as at the time the jurisprudence was that courts could exercise discretion while sentencing under the Sexual Offences Act.
36. In a decision that was delivered on 12th July 2024 in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) , the Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi vs Republic [2022] eKLR in which the Court of Appeal reiterated the reasoning in the case of Dismas Wafula Kilwake vs Republic [2018] eKLR where it had 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. As this court was bound by the decisions of courts superior to it, its hands were tied and could not exercise its discretion to reduce sentences under the Sexual Offences Act.
37. Having said so, this court had found hereinabove that the offence it found to have been proved by the Prosecution was that of incest. Section 20 (1) of the Sexual Offences Act states as follows:-
“Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.”
38. It was evident that under Section 20(1) of the Sexual Offences Act, the minimum mandatory sentence was ten (10) years. The trial court still had the discretion to enhance the same to life imprisonment where the victim was below eighteen (18) years of age.
39. Although the Respondent has asked this court to enhance the Appellant’s sentence, this court noted that it did not cross-appeal or issue a Notice of Enhancement. This would have allowed the Appellant to have made an informed decision as to whether he would have wanted to proceed with the Appeal in view of the risk of having his sentence enhanced to life. It was for that reason that this court left the sentence of twenty (20) years undisturbed, as it was still within the sentence that could be meted out under Section 20(1) of the Sexual Offences Act.
40. As the Appellant was serving a determinate sentence, this court was mandated to consider the time that he spent in remand during the hearing of his case. The duty to take into account the period an accused person had remained in custody before sentencing pursuant to Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) was restated by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & Another vs Republic[2018]eKLR .
41. Section 333(2) of the Criminal Procedure Code stipulates 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) ” .
42. 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…”
43. The Appellant was arrested on 28th October 2021. He was released on bail/bond on 10th December 2021. He was convicted on 18th November 2022 and was sentenced on 29th December 2022. The period between the time that the Appellant was arrested on 28th October 2021 and when he was released on bond on 10th December 2021, and between 18th November 2022 when he was convicted and 29th December 2022 when he was sentenced, therefore, ought to have been taken into account in line with Section 333(2) of the Criminal Procedure Code. However, a perusal of the proceedings showed that the Trial Court did not take into account by the Trial Court at the time of sentencing the Appellant.
DISPOSITION
1. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal was not merited and the same be and is hereby dismissed. The conviction and sentence be and are hereby upheld as they were both safe.
2. For the avoidance of doubt, t he periods between 28 th October 2021 and 10th December 2021 and between 18 th November 2022 and 28 th December 2022, be and are hereby taken into account while computing his sentence pursuant to Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
3. It is so ordered.
DATED and DELIVERED at VIHIGA this 25 th day of May 2026
J. KAMAU
JUDGE
HCCRA NO E046 OF 20242
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL APPEAL NO E046 OF 2024
PETER CHAMWADA …………………………..………………………….APPELLANT
VERSUS
REPUBLIC…………………………………………….…………………..RESPONDENT
(Being an Appeal from the Judgment of Hon S. Manyura (RM) delivered at Hamisi in the Principal Magistrate’s Court in Sexual Offence Case No 70 of 2021 on 18 th November 2022)
INTRODUCTION
1. The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No 3 of 2006 (count I). 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. In count II, he was charged with the offence of incest contrary to Section 20(1) of the Sexual Offences Act.
2. The Learned Trial Magistrate, Hon S. Manyura (RM), convicted him of the offence of defilement and sentenced him to twenty (20) years imprisonment.
3. Being dissatisfied with the said Judgement, on 20th December 2024, he lodged an appeal herein. His Petition of Appeal was dated 19th December 2024. He set out three (3) grounds of appeal.
4. His Written Submissions were dated 15th August 2025 and filed on 3rd September 2025 while those of the Respondent were dated 10th September 2025 and filed on 14th October 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 only issue that had been placed before it for determination was whether or not the Prosecution proved its case beyond reasonable doubt. Grounds of Appeal Nos (1), (2), and (3) of the Petition of Appeal were, therefore, dealt with under this head as they were all related.
I. PROOF OF THE PROSECUTION’S CASE
8. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement.
9. It is now settled that the ingredients of the offence of defilement are proof of the complainant’s age, proof of penetration, and identification of the perpetrator, as was held in the case of George Opondo Olunga vs Republic [2016] eKLR . This court dealt with the same under the following distinct and separate heads.
A. AGE
10. The Appellant did not submit on this issue. On its part, the Respondent submitted that the Charge Sheet indicated that the victim was eleven (11) years of age at the time of the commission of the offence as per the Age Assessment Report that PW 6 produced by PW 6 and, therefore, a minor at the time of the commission of the offence.
11. It relied on the case of Musyoki Mwakavi vs Republic[2014]eKLR, where it was held that in a charge of defilement, age of the minor could be proved by medical evidence, baptism card, school-leaving certificates, by the victim’s parents and/or guardians, observation, or common sense.
12. The Complainant (hereinafter referred to as “PW 1”) testified that she was eleven (11) years old and was going to Grade Six (6). No 239853 PC Wilbrodah was the Investigating Officer in this matter. She produced the Age Assessment Report dated 28th October 2021 that showed that PW 1 was aged eleven (11) years.
13. As the Appellant did not challenge the production of the aforesaid Age Assessment Report and/or rebut the said evidence by adducing evidence to the contrary, this court was satisfied that PW1 was a child at all material times. However, this court was unable to ascertain her exact age as Isaac Chelimo, who signed the Age Assessment Report on behalf of the Dental Specialist, did not explain what scientific assessment he conducted to conclude that PW 1 was aged eleven (11) years at the material time of the incident.
14. As the sentence of defilement was pegged on the age of a victim, this court found and held that the Prosecution did not prove PW 1’s age to the required standard, which in criminal cases was proof beyond reasonable doubt.
15. The case would have collapsed at this stage as age, identification of the perpetrator, and penetration had to be demonstrated to prove the offence of defilement. Having said so, this court noted that the Accused person had also been charged with the offence of incest, where the sentence was not dependent on the age of the victim. This court, therefore, proceeded to determine whether the ingredients of incest were proved using the evidence that was adduced, which were penetration and familial relationship between the victim and the perpetrator.
B. IDENTIFICATION
16. The Appellant did not submit on this issue. On its part, the Respondent set out the evidence of PW 1 and her teacher, Nancy Wanjiku Muganga (hereinafter referred to as “PW 2”), which showed that the Appellant was PW 1’s father. It also pointed out that in his defence, the Appellant confirmed that he was PW 1’s father.
17. The Appellant did not deny knowing PW 1. In his sworn evidence, he told the Trial Court that she was his child. As she and the Appellant knew each other, this court was satisfied that there could not have been any mistaken identity. Identification was by way of recognition.
C. PENETRATION
18. The Appellant submitted that the Prosecution failed to avail crucial witnesses to prove its case. He stated that PW 1’s siblings ought to have been called as witnesses, as she said that they were in the same room when he defiled her. He pointed out that his father, Benson Madaga (hereinafter referred to as “DW 2”), testified that PW 1 and the other children lived with his mother and hence, he would have known if PW 1 was defiled. He relied on the case of Bakare vs State (1987) 1 NWLR (PT 52) 579 and the case of Pius Arap Maina vs Republic [2013] eKLR, where the common thread was that the prosecution was required to prove its case beyond reasonable doubt and that if there was any doubt, then the case had to be decided in favour of the accused person.
19. He also referred this court to the case of Absolom Amboka Okila vs Republic [2020] eKLR, where the court held that the circumstances under which a defilement took place could not be ignored. He asserted that this was a case under Section 33 of the Sexual Offences Act No 3 of 2006, and the trial court was obliged to enquire into the circumstances surrounding the case. He also referred this court to the case of People vs Sandoval 314 N.E. 2nd 471-18 (N.Y. 1974), which interrogated the circumstances surrounding a sexual offence.
20. He further placed reliance on the case of O.K.K. vs Republic [2021] eKLR in which it was held that a trial court was mandated to enquire of the circumstances entailed dishonesty so as to impeach the credibility and reliability of witnesses.
21. On its part, the Respondent submitted that PW 1’s evidence was corroborated by the evidence of the Clinical Officer, Ibrahim Vonyoi (hereinafter referred to as “PW 5 ”) who observed that the hymen was torn, the remnants were swollen, swelling and bruises on the labia minora, and discharge from the vagina. It pointed that he produced the Treatment notes, the laboratory Form, P3 Form and PRC Form to prove penetration.
22. According to PW 1, between September and October 2021, her mother left with her brother and sister. She testified that the Appellant came to their room and defiled her three (3) times. She told the Trial Court that her siblings were asleep when the defilement occurred and that the Appellant would beat her when she cried.
23. She said that she feared going to school, but the Appellant forced her to go. She averred that when she went to school, she informed PW 2 and Teacher Alice (hereinafter referred to as “PW 3”) of what had transpired. She averred that they took her to the hospital, where she was examined and thereafter taken to Kakamega Children’s Home. She positively identified the Appellant as her perpetrator. He did not cross-examine her.
24. Both PW 2, PW 3, and a Social Worker, Rael Khakeu Malenya (hereinafter referred to as “PW 4”) corroborated PW 1’s evidence. On his part, PW 5 confirmed the injuries that PW 1 suffered on her genitalia, and he concluded that the said injuries were consistent with penetration.
25. Notably, the proviso of Section 124 of the Evidence Act states that:-
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth ( emphasis) .”
26. Even so, a trial court was required to exercise great caution before relying on the evidence of a single witness to convict an accused person, as it would be one person’s word against another's.
27. Section 143 of the Evidence Act provides as follows:-
“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. “
28. Indeed, there was no requirement that the prosecution call a particular number of witnesses to prove a fact. However, despite having this liberty, failure to call witnesses to fill gaps in its case was detrimental to its case. In other words, where the prosecution failed to call crucial witnesses, an inference could be made that their evidence would have been adverse to its case. Even so, the inference could only be made where the evidence was not adequate.
29. The Appellant’s submissions that failure to call PW 1’s siblings as witnesses was fatal was neither here nor there, as PW 1 testified that her siblings were asleep when he defiled her. Although the Appellant denied committing the offence and stated that he was framed, it was evident that PW 1’s evidence that she was defiled on the material night was corroborated by PW 2, PW 3, PW 4, and PW 5’s medical evidence. The evidence that was adduced by the Prosecution outweighed the evidence that the Appellant tendered in court.
30. It was the view of this court that the evidence before the trial court was sufficient to form a basis for conviction as the Prosecution proved their case to the required standard, which in criminal cases was proof beyond reasonable doubt.
31. In the premises foregoing, Grounds of Appeal Nos (1), (2) and (3) of the Petition of Appeal were not merited, and the same be and are hereby dismissed.
II. SENTENCE
32. Although the Appellant did not list the severity of his sentence as a Ground of Appeal, he raised the issue in his Written Submissions. He urged this court to set aside the sentence of twenty (20) years or to reduce the same to a lesser sentence or to mete out against him a non-custodial sentence.
33. The Respondent averred that he was convicted under Section 8(2) of the Sexual Offences Act and faulted the Trial Court for having meted out to him an illegal sentence of twenty (20) years. It urged this court to enhance the sentence to life imprisonment.
34. Notably, the Appellant was charged under Section 8(2) of the Sexual Offences Act Cap 63A (Laws of Kenya). The same provides as follows:-
“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.”
35. The Trial Court could not, however, be faulted for having sentenced the Appellant to twenty (20) years imprisonment, as at the time the jurisprudence was that courts could exercise discretion while sentencing under the Sexual Offences Act.
36. In a decision that was delivered on 12th July 2024 in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) , the Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi vs Republic [2022] eKLR in which the Court of Appeal reiterated the reasoning in the case of Dismas Wafula Kilwake vs Republic [2018] eKLR where it had 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. As this court was bound by the decisions of courts superior to it, its hands were tied and could not exercise its discretion to reduce sentences under the Sexual Offences Act.
37. Having said so, this court had found hereinabove that the offence it found to have been proved by the Prosecution was that of incest. Section 20 (1) of the Sexual Offences Act states as follows:-
“Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.”
38. It was evident that under Section 20(1) of the Sexual Offences Act, the minimum mandatory sentence was ten (10) years. The trial court still had the discretion to enhance the same to life imprisonment where the victim was below eighteen (18) years of age.
39. Although the Respondent has asked this court to enhance the Appellant’s sentence, this court noted that it did not cross-appeal or issue a Notice of Enhancement. This would have allowed the Appellant to have made an informed decision as to whether he would have wanted to proceed with the Appeal in view of the risk of having his sentence enhanced to life. It was for that reason that this court left the sentence of twenty (20) years undisturbed, as it was still within the sentence that could be meted out under Section 20(1) of the Sexual Offences Act.
40. As the Appellant was serving a determinate sentence, this court was mandated to consider the time that he spent in remand during the hearing of his case. The duty to take into account the period an accused person had remained in custody before sentencing pursuant to Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) was restated by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & Another vs Republic[2018]eKLR .
41. Section 333(2) of the Criminal Procedure Code stipulates 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) ” .
42. 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…”
43. The Appellant was arrested on 28th October 2021. He was released on bail/bond on 10th December 2021. He was convicted on 18th November 2022 and was sentenced on 29th December 2022. The period between the time that the Appellant was arrested on 28th October 2021 and when he was released on bond on 10th December 2021, and between 18th November 2022 when he was convicted and 29th December 2022 when he was sentenced, therefore, ought to have been taken into account in line with Section 333(2) of the Criminal Procedure Code. However, a perusal of the proceedings showed that the Trial Court did not take into account by the Trial Court at the time of sentencing the Appellant.
DISPOSITION
1. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal was not merited and the same be and is hereby dismissed. The conviction and sentence be and are hereby upheld as they were both safe.
2. For the avoidance of doubt, t he periods between 28 th October 2021 and 10th December 2021 and between 18 th November 2022 and 28 th December 2022, be and are hereby taken into account while computing his sentence pursuant to Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
3. It is so ordered.
DATED and DELIVERED at VIHIGA this 25 th day of May 2026
J. KAMAU
JUDGE
HCCRA NO E046 OF 20242