(An appeal from the conviction and sentence in Chief Magistrates Court at Makueni Sexual Offence Case No. E027 of 2023, Judgment delivered on 14 th May, 2024 by Hon. P. Gesora, CM.)
1. The Appellant was charged with the offence of Incest contrary to Section 20 (1) of Sexual Offences Act. The particulars were that, the Appellant, on diverse dates of May and June, 2023 at around 2300hrs at Itanzeni village, Kilala location, Kilala sublocation, Makueni Sub-County within Makueni County, intentionally and unlawfully caused his penis to penetrate the vagina of M.W.V. a child of 17 years old, who is his daughter.
2. The lower Court delivered the judgment on 14 th April, 2024, in which it found the Appellant guilty and convicted him as charged. It sentenced him to 15 years imprisonment.
3. The Appellant was dissatisfied with the Judgment and brought this appeal against both the conviction and sentence. He listed the following grounds;
1) That the learned trial magistrate erred in law and fact when he convicted and sentenced the Appellant without observing that the charges before the court were defective for both being in great variance with the evidence on the record.
2) That the learned trial magistrate erred in law and facts by sentencing the Appellant without considering that there was no evidence to prove the offence of incest to the required standard in criminal law of beyond reasonable doubt.
3) That the learned trial magistrate erred in both law and fact by shifting the burden of proof to the Appellant and misdirected himself on the evidence and arrived on the wrong conclusion.
4) That the learned trial magistrate erred in law and fact when he failed to consider that the trial was so fast for the layman like Appellant to be able to follow up the case and yet he was not served with witness statements contrary to Article 50 (c) (j) of the Constitution of Kenya.
4. The Appeal was canvassed by way of written submissions.
Appellant’s written Submissions
5. The Appellant submitted that the lower Court was wrong in convicting him and in imposing the above mentioned sentence. He submitted that the lower court should have disregarded the prosecution’s evidence, arguing that the Complainant’s testimony contradicted the doctor’s report on when the alleged incident happened. He also submitted that prosecution did not prove the aspect of penetration, arguing that the medical report showed that the vagina was normal, hymen was broken but not freshly broken, no discharge, no vaginal bleeding, and the tears were not fresh.
6. In addition, the Appellant submitted that the charge sheet was defective, arguing that, at the time of the alleged incident, the Complainant was 16 years and not 17 years as indicated in the charge sheet. He argued that the inclusion of the wrong, as in the charge sheet, was a fatal mistake and occasioned a miscarriage of justice. Lastly, (in the alternative) the Appellant requested that the Court award a lenient sentence and give him a second chance in society. He submitted that he was apologetic to God, to the complainant, and to society.
The Respondent’s written Submissions
7. The Respondent submitted that the lower Court was right in convicting the Appellant and in imposing a 15-year sentence. It argued that it proved the Appellant is the father of the victim, that he penetrated her, and that he was properly identified as the perpetrator. In addition, it submitted that there were no notable inconsistencies in the witness testimonies, arguing that the witness testimonies considered together point to the fact that there was penetration of the Complainant by the Appellant. Lastly, it submitted that the sentence should not be interfered with, arguing that the lower court exercised discretion judiciously.
Issues for Determination
8. Having considered the Grounds of Appeal and the submissions made by the parties, I find that there are two issues for determination:
a) Whether the offence of Incest was proven to the required standard thereby warranting a conviction.
b) Whether the sentence imposed was appropriate.
9. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR.
Whether the offence of Incest was proven to the required standard thereby warranting a conviction
10. The offense of Incest is provided for under Section 20(1) of the Sexual Offences Act, 2006 , which states as follows:
20. (1) 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.
11. The court in JKM v Republic (Criminal Appeal 54 of 2018) [2020] KEHC 3953 eKLR interpreted the above section as follows;
To establish a case under the above Section, the prosecution must prove the elements of the offence which are: There must be:
1. An indecent act or an act that causes penetration;
2. The victim must be a female person who is related to the perpetrator in the degrees set out in Section 22 of the Act.
12. Thus, in order to secure a conviction for the offence of Incest, the prosecution is required to prove two elements. First, it is required to prove either penetration or an indecent act. Secondly, it is required to prove the relationship between the accused and the victim/complainant.
13. The first issue for this Court to interrogate is whether the element of penetration was established. Courts have given guidance on how penetration should be proved. In DS v Republic [2022] KEHC 2502 (KLR) , the Court held as follows;
19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration.
14. I shall first outline the evidence that the prosecution tendered to prove the element of penetration.
15. PW1 was the complainant. She told the court that the Appellant defiled her on two occasions, and he told her not to tell her mother. She also described how it happened and that her siblings were asleep at the time. The Appellant did not cross-examine the Complainant.
16. PW3 was a Clinical officer attached to Makueni Referral Hospital. She is the one who filled out the P3 Form and the Post Rape Care form. She produced the said medical reports. She testified that she found the Complainant was 23 weeks pregnant, but all the other tests turned negative.
17. I have seen the said reports. They corroborate the testimony of the clinical officer. In particular, they show that the external genitalia was normal, the vagina was normal, the hymen was not intact and was not freshly broken.
18. The Appellant submitted that these medical findings do not establish penetration. He seemed to capitalize on the fact that the vagina was normal, hymen was broken but not freshly broken, there was no discharge, there was no vaginal bleeding, and the tears were not fresh.
19. Courts have observed that where the penetration is “forceful” or “forced sex,” the medical examination of the victim is likely to reveal presence of bruises or lacerations, discharge, and blood stains. In Eliud Muraya Wabuchi v Republic [2020] eKLR , the Court observed as follows;
The evidence of PW3 the clinical officer did not help much. PW3 did not find any lacerations or bruises on the complainant’s genitalia to support PW1’s allegations of forced sex. There would have been presence of bruises or lacerations had there been force. No discharge was found and no blood stains were found even though PW1 said she had bled a lot. One wonders whether indeed there was forceful penetration of PW1 at all. Despite PW3’s findings, he then made a finding that there was penile penetration. In my view, the said finding was without any basis .
20. In the instant case, it appears to this court that the alleged penetration was “forceful.” This is because the Complainant told the medical officer who examined her that it was forceful. That being the case, it means that, the vaginal medical examination of the Complainant was likely to reveal bruises, lacerations, and blood stains.
21. I appreciate the fact that in this case, the examination was done 4 months and 24 days after the alleged penetration. Therefore, assuming that the Complainant had been abused and that she had sustained bruises and lacerations, such injuries must have healed by the time she went for the examination. Thus, the absence of bruises and lacerations in the medical examination is not a relief to the Appellant because such injuries could not be expected to be revealed in the medical report, in the circumstances herein.
22. Courts have issued useful guidance on how a trial court should proceed in instances where the medical examination is not conclusive. In DS v Republic [2022] KEHC 2502 (KLR) , the Court held that, in these circumstances, a court ought to weigh and scrutinize the child’s testimony thoroughly and with utmost caution, for it to decide whether there was penetration;
19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration .
23. Similarly, under the law of Evidence, a Court is allowed to convict on uncorroborated evidence of a victim of a sexual offence, if it is satisfied that the victim is telling the truth. This principle is provided for under Section 124 of the Evidence Act which provides;
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.
24. The Court of Appeal in Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA) underscored the need for the Court to assure itself about the integrity of a witness and their trustworthiness. The Court held as follows;
“The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”
25. In my view, this is one of the cases where the court is required to weigh, with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration. As this court does the scrutiny, it is also required to satisfy itself that the child is telling the truth.
26. The Complainant told the court that the Appellant defiled her and told her not to tell her mother. She kept it to herself until the pregnancy was discovered by a teacher about 4 months later, and that was when she talked about it. I note that she was 17 years old when the sexual assault happened. One of the questions that crosses the mind of the court is whether the Complainant gave a reasonable explanation as to why she kept the incident a secret and failed to report to her mother.
27. She told the Court that at that time, she used to stay at home with her siblings and her father (the Appellant). It was her testimony that her mother was away at work in Masii, and that she would come on weekends. PW2, the Complainant’s mother, corroborated this. She told the court that she used to work away from home and that she used to sleep at her place of work, while the children were in the custody of the Appellant.
28. I am satisfied with the explanation that she gave. In the circumstances of this case, it appears to this Court that the Complainant did not have someone close to intimate what the Appellant had done to her. Her mother was not at home because she was away at work. The only person available was the Appellant, who is the alleged perpetrator. For these reasons, I am satisfied that the Complainant was telling the truth.
29. The evidence indicates that the appellant defiled the complainant on two separate occasions. The complainant was categorical that the appellant inserted his penis into her vagina.
30. I find no reason to doubt the Complainant’s testimony on the penetration. After analysis, I arrive at the same conclusion as the learned magistrate that the element of penetration was proved.
31. The other issue is whether the Complainant is related to the Appellant as her father. The Complainant testified that the Appellant was her father, and this was corroborated by her mother. Importantly, the Appellant submitted that the Complainant was her daughter and that she had a birth certificate with serial No. 8242*** to confirm it. Accordingly, I find that the fact of the Appellant being the Complainant’s father was proved.
32. Having satisfied myself that the Complainant was penetrated by the Appellant, who was her father, I find that the offence of Incest was proved. I thus uphold the lower court’s conviction.
33. On sentencing, the Appellant asked this court to award a lenient sentence and give him a second chance at society.
34. The sentence for the offence of Incest is provided for under Section 20(1) of the Sexual Offences Act, 2006 , which states as follows:
20. (1) 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.
35. There was evidence that the Complainant was a minor at the time of the sexual assault. The birth certificate indicated that she was born on 9 th April, 2006, while the sexual assault happened on diverse dates of May and June, 2023. This means that, at the time of the incident, she was 17 years old. The lower Court sentenced the Appellant to serve 15 years’ imprisonment.
36. I have considered the Victim Impact Statement Report dated 6 th May, 2024 as well as the Pre-Sentence Report dated the same day. Based on her age at the time of the incident, and the recommendations in the two reports, I find that the lower Court exercised its discretion judiciously in arriving at the sentence. I thus find no reason to interfere with the same. The sentence is hereby upheld.
37. The upshot is that the Appeal is dismissed. The appellant remained in custody upon arrest and throughout the trial. Accordingly, the sentence shall run from 27th October, 2023 - the date of arrest.
38. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 26 th day of FEBRUARY, 2026
HON. C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant – present
Ms. Mutua, ODPP
8 | Page
1. The Appellant was charged with the offence of Incest contrary to Section 20 (1) of Sexual Offences Act. The particulars were that, the Appellant, on diverse dates of May and June, 2023 at around 2300hrs at Itanzeni village, Kilala location, Kilala sublocation, Makueni Sub-County within Makueni County, intentionally and unlawfully caused his penis to penetrate the vagina of M.W.V. a child of 17 years old, who is his daughter.
2. The lower Court delivered the judgment on 14 th April, 2024, in which it found the Appellant guilty and convicted him as charged. It sentenced him to 15 years imprisonment.
3. The Appellant was dissatisfied with the Judgment and brought this appeal against both the conviction and sentence. He listed the following grounds;
1) That the learned trial magistrate erred in law and fact when he convicted and sentenced the Appellant without observing that the charges before the court were defective for both being in great variance with the evidence on the record.
2) That the learned trial magistrate erred in law and facts by sentencing the Appellant without considering that there was no evidence to prove the offence of incest to the required standard in criminal law of beyond reasonable doubt.
3) That the learned trial magistrate erred in both law and fact by shifting the burden of proof to the Appellant and misdirected himself on the evidence and arrived on the wrong conclusion.
4) That the learned trial magistrate erred in law and fact when he failed to consider that the trial was so fast for the layman like Appellant to be able to follow up the case and yet he was not served with witness statements contrary to Article 50 (c) (j) of the Constitution of Kenya.
4. The Appeal was canvassed by way of written submissions.
Appellant’s written Submissions
5. The Appellant submitted that the lower Court was wrong in convicting him and in imposing the above mentioned sentence. He submitted that the lower court should have disregarded the prosecution’s evidence, arguing that the Complainant’s testimony contradicted the doctor’s report on when the alleged incident happened. He also submitted that prosecution did not prove the aspect of penetration, arguing that the medical report showed that the vagina was normal, hymen was broken but not freshly broken, no discharge, no vaginal bleeding, and the tears were not fresh.
6. In addition, the Appellant submitted that the charge sheet was defective, arguing that, at the time of the alleged incident, the Complainant was 16 years and not 17 years as indicated in the charge sheet. He argued that the inclusion of the wrong, as in the charge sheet, was a fatal mistake and occasioned a miscarriage of justice. Lastly, (in the alternative) the Appellant requested that the Court award a lenient sentence and give him a second chance in society. He submitted that he was apologetic to God, to the complainant, and to society.
The Respondent’s written Submissions
7. The Respondent submitted that the lower Court was right in convicting the Appellant and in imposing a 15-year sentence. It argued that it proved the Appellant is the father of the victim, that he penetrated her, and that he was properly identified as the perpetrator. In addition, it submitted that there were no notable inconsistencies in the witness testimonies, arguing that the witness testimonies considered together point to the fact that there was penetration of the Complainant by the Appellant. Lastly, it submitted that the sentence should not be interfered with, arguing that the lower court exercised discretion judiciously.
Issues for Determination
8. Having considered the Grounds of Appeal and the submissions made by the parties, I find that there are two issues for determination:
a) Whether the offence of Incest was proven to the required standard thereby warranting a conviction.
b) Whether the sentence imposed was appropriate.
9. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR.
Whether the offence of Incest was proven to the required standard thereby warranting a conviction
10. The offense of Incest is provided for under Section 20(1) of the Sexual Offences Act, 2006 , which states as follows:
20. (1) 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.
11. The court in JKM v Republic (Criminal Appeal 54 of 2018) [2020] KEHC 3953 eKLR interpreted the above section as follows;
To establish a case under the above Section, the prosecution must prove the elements of the offence which are: There must be:
1. An indecent act or an act that causes penetration;
2. The victim must be a female person who is related to the perpetrator in the degrees set out in Section 22 of the Act.
12. Thus, in order to secure a conviction for the offence of Incest, the prosecution is required to prove two elements. First, it is required to prove either penetration or an indecent act. Secondly, it is required to prove the relationship between the accused and the victim/complainant.
13. The first issue for this Court to interrogate is whether the element of penetration was established. Courts have given guidance on how penetration should be proved. In DS v Republic [2022] KEHC 2502 (KLR) , the Court held as follows;
19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration.
14. I shall first outline the evidence that the prosecution tendered to prove the element of penetration.
15. PW1 was the complainant. She told the court that the Appellant defiled her on two occasions, and he told her not to tell her mother. She also described how it happened and that her siblings were asleep at the time. The Appellant did not cross-examine the Complainant.
16. PW3 was a Clinical officer attached to Makueni Referral Hospital. She is the one who filled out the P3 Form and the Post Rape Care form. She produced the said medical reports. She testified that she found the Complainant was 23 weeks pregnant, but all the other tests turned negative.
17. I have seen the said reports. They corroborate the testimony of the clinical officer. In particular, they show that the external genitalia was normal, the vagina was normal, the hymen was not intact and was not freshly broken.
18. The Appellant submitted that these medical findings do not establish penetration. He seemed to capitalize on the fact that the vagina was normal, hymen was broken but not freshly broken, there was no discharge, there was no vaginal bleeding, and the tears were not fresh.
19. Courts have observed that where the penetration is “forceful” or “forced sex,” the medical examination of the victim is likely to reveal presence of bruises or lacerations, discharge, and blood stains. In Eliud Muraya Wabuchi v Republic [2020] eKLR , the Court observed as follows;
The evidence of PW3 the clinical officer did not help much. PW3 did not find any lacerations or bruises on the complainant’s genitalia to support PW1’s allegations of forced sex. There would have been presence of bruises or lacerations had there been force. No discharge was found and no blood stains were found even though PW1 said she had bled a lot. One wonders whether indeed there was forceful penetration of PW1 at all. Despite PW3’s findings, he then made a finding that there was penile penetration. In my view, the said finding was without any basis .
20. In the instant case, it appears to this court that the alleged penetration was “forceful.” This is because the Complainant told the medical officer who examined her that it was forceful. That being the case, it means that, the vaginal medical examination of the Complainant was likely to reveal bruises, lacerations, and blood stains.
21. I appreciate the fact that in this case, the examination was done 4 months and 24 days after the alleged penetration. Therefore, assuming that the Complainant had been abused and that she had sustained bruises and lacerations, such injuries must have healed by the time she went for the examination. Thus, the absence of bruises and lacerations in the medical examination is not a relief to the Appellant because such injuries could not be expected to be revealed in the medical report, in the circumstances herein.
22. Courts have issued useful guidance on how a trial court should proceed in instances where the medical examination is not conclusive. In DS v Republic [2022] KEHC 2502 (KLR) , the Court held that, in these circumstances, a court ought to weigh and scrutinize the child’s testimony thoroughly and with utmost caution, for it to decide whether there was penetration;
19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration .
23. Similarly, under the law of Evidence, a Court is allowed to convict on uncorroborated evidence of a victim of a sexual offence, if it is satisfied that the victim is telling the truth. This principle is provided for under Section 124 of the Evidence Act which provides;
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.
24. The Court of Appeal in Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA) underscored the need for the Court to assure itself about the integrity of a witness and their trustworthiness. The Court held as follows;
“The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”
25. In my view, this is one of the cases where the court is required to weigh, with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration. As this court does the scrutiny, it is also required to satisfy itself that the child is telling the truth.
26. The Complainant told the court that the Appellant defiled her and told her not to tell her mother. She kept it to herself until the pregnancy was discovered by a teacher about 4 months later, and that was when she talked about it. I note that she was 17 years old when the sexual assault happened. One of the questions that crosses the mind of the court is whether the Complainant gave a reasonable explanation as to why she kept the incident a secret and failed to report to her mother.
27. She told the Court that at that time, she used to stay at home with her siblings and her father (the Appellant). It was her testimony that her mother was away at work in Masii, and that she would come on weekends. PW2, the Complainant’s mother, corroborated this. She told the court that she used to work away from home and that she used to sleep at her place of work, while the children were in the custody of the Appellant.
28. I am satisfied with the explanation that she gave. In the circumstances of this case, it appears to this Court that the Complainant did not have someone close to intimate what the Appellant had done to her. Her mother was not at home because she was away at work. The only person available was the Appellant, who is the alleged perpetrator. For these reasons, I am satisfied that the Complainant was telling the truth.
29. The evidence indicates that the appellant defiled the complainant on two separate occasions. The complainant was categorical that the appellant inserted his penis into her vagina.
30. I find no reason to doubt the Complainant’s testimony on the penetration. After analysis, I arrive at the same conclusion as the learned magistrate that the element of penetration was proved.
31. The other issue is whether the Complainant is related to the Appellant as her father. The Complainant testified that the Appellant was her father, and this was corroborated by her mother. Importantly, the Appellant submitted that the Complainant was her daughter and that she had a birth certificate with serial No. 8242*** to confirm it. Accordingly, I find that the fact of the Appellant being the Complainant’s father was proved.
32. Having satisfied myself that the Complainant was penetrated by the Appellant, who was her father, I find that the offence of Incest was proved. I thus uphold the lower court’s conviction.
33. On sentencing, the Appellant asked this court to award a lenient sentence and give him a second chance at society.
34. The sentence for the offence of Incest is provided for under Section 20(1) of the Sexual Offences Act, 2006 , which states as follows:
20. (1) 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.
35. There was evidence that the Complainant was a minor at the time of the sexual assault. The birth certificate indicated that she was born on 9 th April, 2006, while the sexual assault happened on diverse dates of May and June, 2023. This means that, at the time of the incident, she was 17 years old. The lower Court sentenced the Appellant to serve 15 years’ imprisonment.
36. I have considered the Victim Impact Statement Report dated 6 th May, 2024 as well as the Pre-Sentence Report dated the same day. Based on her age at the time of the incident, and the recommendations in the two reports, I find that the lower Court exercised its discretion judiciously in arriving at the sentence. I thus find no reason to interfere with the same. The sentence is hereby upheld.
37. The upshot is that the Appeal is dismissed. The appellant remained in custody upon arrest and throughout the trial. Accordingly, the sentence shall run from 27th October, 2023 - the date of arrest.
38. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 26 th day of FEBRUARY, 2026
HON. C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant – present
Ms. Mutua, ODPP
8 | Page