1. Robert Wanjohi Muthoni, the Appellant, was charged with the offence of Defilement contrary to Section 8(1)(3) of the Sexual Offences Act. The particulars of the offence were that on the 7 th day of May, 2023, in Mwireri village within Nyahururu Sub-County, in Laikipia County, intentionally caused his penis to penetrate the vagina and anus of DMM a child aged 14 years.
2. In the alternative he faced the charge of Committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act. Particulars of the offence being that on the 7 th day of May, 2023, in Laikipia County intentionally touched the anus and vagina of DMM a child aged 14 years with his penis.
3. He was taken through full trial, convicted for defilement and sentenced to serve twenty (20) years imprisonment.
4. Aggrieved, he appealed on grounds that the case was not proved beyond reasonable doubt; evidence adduced by the prosecution was not corroborated; the burden of proof was shifted to the defence and the Appellant’s rights were infringed.
5. When the appeal came up for directions on disposal of the same, the Appellant opted to withdraw the appeal on conviction and only mitigated on sentence.
6. He sought reduction of the term to the period served on the ground that he wishes to go join his wife who suffered a stroke and her body is paralyzed.
7. The appeal is opposed by the Respondent through Ms. Mumbe, learned prosecution counsel who submits that the appeal on sentencing be dismissed. That the case was proved to the required standard and the witnesses identified the Appellant as the assailant. And, the sentence provided under the Act, is twenty (20) years imprisonment, a sentence that is just and fair.
8. I have considered rival arguments. This is a case where the victim was dragged to the scene of the act by the Appellant who undressed and used his genitalia to penetrate the anus of the victim then also inserted it into her vagina. On examination it was established that her hymen was freshly broken and she had bloody discharge. There was proof of penetration. (See Section 2 of the Sexual Offences Act ).
9. On the question of sentence, Section 8(3) of the Sexual Offences Act provides thus;
A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
10. The victim was born on 29 th August, 2009, hence at the time of the act she was nine months shy of 15 years hence of an apparent age of 14 years.
11. The perpetrator of the act, the Appellant herein was stated to have been 60 years old at the time. The Judiciary Sentencing Policy Guidelines lists the objectives of sentencing as;
i. Retribution: To punish the offender for their criminal conduct in a just manner.
ii. Deterrence: To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences.
iii. Rehabilitation: To enable the offender to reform from his/her criminal disposition and become a law-abiding person.
iv. Restorative justice: To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender’s contribution towards meeting those needs.
v. Community protection: To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts.
vi. Denunciation: To clearly communicate the community’s condemnation of the criminal conduct.
vii. Reconciliation: To mend the relationship between the offender, the victim and the community.
viii. Reintegration: To facilitate the re-entry of the offender into the society.
12. In the instant case the Appellant calls upon the court to consider his wife’s alleged health but there was no evidence provided to that effect. There is however no mention of having rehabilitated to persuade the court as the question put forth regarding the mandatory minimum sentence provided. Considering the manner in which the offence was committed the sentence meted out was proportional to the offence committed.
13. In the premises, the appeal lacks merit, accordingly, it is dismissed.
14. It is so ordered.
HCCRA E021 OF 2025 (JUDG.) Page 2 of 2
2. In the alternative he faced the charge of Committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act. Particulars of the offence being that on the 7 th day of May, 2023, in Laikipia County intentionally touched the anus and vagina of DMM a child aged 14 years with his penis.
3. He was taken through full trial, convicted for defilement and sentenced to serve twenty (20) years imprisonment.
4. Aggrieved, he appealed on grounds that the case was not proved beyond reasonable doubt; evidence adduced by the prosecution was not corroborated; the burden of proof was shifted to the defence and the Appellant’s rights were infringed.
5. When the appeal came up for directions on disposal of the same, the Appellant opted to withdraw the appeal on conviction and only mitigated on sentence.
6. He sought reduction of the term to the period served on the ground that he wishes to go join his wife who suffered a stroke and her body is paralyzed.
7. The appeal is opposed by the Respondent through Ms. Mumbe, learned prosecution counsel who submits that the appeal on sentencing be dismissed. That the case was proved to the required standard and the witnesses identified the Appellant as the assailant. And, the sentence provided under the Act, is twenty (20) years imprisonment, a sentence that is just and fair.
8. I have considered rival arguments. This is a case where the victim was dragged to the scene of the act by the Appellant who undressed and used his genitalia to penetrate the anus of the victim then also inserted it into her vagina. On examination it was established that her hymen was freshly broken and she had bloody discharge. There was proof of penetration. (See Section 2 of the Sexual Offences Act ).
9. On the question of sentence, Section 8(3) of the Sexual Offences Act provides thus;
A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
10. The victim was born on 29 th August, 2009, hence at the time of the act she was nine months shy of 15 years hence of an apparent age of 14 years.
11. The perpetrator of the act, the Appellant herein was stated to have been 60 years old at the time. The Judiciary Sentencing Policy Guidelines lists the objectives of sentencing as;
i. Retribution: To punish the offender for their criminal conduct in a just manner.
ii. Deterrence: To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences.
iii. Rehabilitation: To enable the offender to reform from his/her criminal disposition and become a law-abiding person.
iv. Restorative justice: To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender’s contribution towards meeting those needs.
v. Community protection: To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts.
vi. Denunciation: To clearly communicate the community’s condemnation of the criminal conduct.
vii. Reconciliation: To mend the relationship between the offender, the victim and the community.
viii. Reintegration: To facilitate the re-entry of the offender into the society.
12. In the instant case the Appellant calls upon the court to consider his wife’s alleged health but there was no evidence provided to that effect. There is however no mention of having rehabilitated to persuade the court as the question put forth regarding the mandatory minimum sentence provided. Considering the manner in which the offence was committed the sentence meted out was proportional to the offence committed.
13. In the premises, the appeal lacks merit, accordingly, it is dismissed.
14. It is so ordered.
HCCRA E021 OF 2025 (JUDG.) Page 2 of 2