(Being an appeal from the judgment, conviction and sentence of Hon. J.S. Wesonga, Principal Magistrate, in Homa Bay Chief Magistrate’s Court Sexual Offence Case No. E018 of 2024 delivered on 26th July 2024)
JUDGMENT
1. The appellant, Samwel Mwita Marwa, was charged before the lower court with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. The particulars of the charge were that on diverse dates between 1st September 2023 and 14th March 2024, at Annian Academy in Homa Bay Sub-County within Homa Bay County, he intentionally caused his penis to penetrate the anus of J.M.O., a child aged 12 years.
2. The appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars were that on diverse dates between 1st September 2023 and 14th March 2024, at Annian Academy in Homa Bay Sub-County within Homa Bay County, he intentionally touched the anus, penis and buttocks of J.M.O., a child aged 12 years, with his hands.
3. The appellant pleaded not guilty. The matter proceeded to full trial. At the conclusion of the trial, the learned trial magistrate convicted the appellant on the main count and sentenced him to serve twenty (20) years’ imprisonment.
4. Being dissatisfied with the conviction and sentence, the appellant filed the present appeal on the following grounds:
a. That the offence was not proved.
b. That the learned trial magistrate disregarded the discrepancies in the evidence of the complainant, thereby occasioning him injustice.
c. That the learned trial magistrate misdirected herself by failing to critically analyse the entire evidence on record and to find that the inconsistencies could not sustain a conviction.
5. This being a first appeal, this Court is under a duty to re-evaluate the entire evidence on record and draw its own independent conclusions, while bearing in mind that it did not see or hear the witnesses testify. In Kiilu & Another v Republic [2005] 1 KLR 174, the Court of Appeal held that a first appellate court must subject the evidence as a whole to a fresh and exhaustive examination and make its own decision on the evidence.
6. In his written submissions dated 3rd September 2025, the appellant stated that he had abandoned the appeal against conviction and would only pursue the appeal against sentence. He submitted that the sentence imposed was excessive and urged the Court to interfere with it. He further submitted that he is reformed, has been of good conduct while in prison, is a family man, and has young school-going children.
7. The appellant also submitted that this Court has power to review his sentence under section 354(3) of the Criminal Procedure Code. He further relied on Article 50(2)(p) of the Constitution and argued that he was entitled to the least severe sentence. He cited Daniel Onyango Ochar v Republic [2020] KEHC 3887 (KLR) and Geoffrey Odhiambo Odhiambo, Siaya Criminal Appeal No. 74 of 2019.
8. Although the State indicated that it had filed submissions, I have not found the same either on the Judiciary e-filing portal or in the physical file. The appeal is therefore not opposed. However, the fact that an appeal is unopposed does not automatically entitle an appellant to the orders sought. The Court is still required to satisfy itself that the appeal has merit.
9. I have carefully considered the record of appeal, the proceedings before the trial court, the judgment of the learned trial magistrate, and the appellant’s submissions.
Issues for Determination
10. Since the appellant abandoned the appeal against conviction and only pursued the appeal against sentence, the issues that arise for determination are:
a. Whether the age of the complainant placed the offence within section 8(3) of the Sexual Offences Act; and
b. Whether the sentence of twenty (20) years’ imprisonment was harsh, excessive or unlawful.
Analysis and Determination
Whether the age of the complainant was proved
11. Although the appellant abandoned the appeal against conviction, the age of the complainant remains relevant because sentences under section 8 of the Sexual Offences Act are pegged on the age of the victim.
12. The complainant, PW1, testified that he was 12 years old. His evidence on age was supported by the evidence of his mother, PW3, and by the birth certificate produced as PExh. 1. I am satisfied that the complainant’s age was proved. I therefore find that the complainant was 12 years old at the material time.
13. The offence therefore fell under section 8(1) as read with section 8(3) of the Sexual Offences Act.
Whether the sentence was harsh or excessive
14. Section 8(3) of the Sexual Offences Act provides that a person who commits an offence of defilement with a child aged between 12 and 15 years is liable, upon conviction, to imprisonment for a term of not less than twenty (20) years.
15. The appellant urged this Court to reduce the sentence and relied on Daniel Onyango Ochar v Republic [2020] KEHC 3887 (KLR), where the High Court reduced a sentence imposed under section 8(3) of the Sexual Offences Act from twenty (20) years to fifteen (15) years. I have considered that decision. However, the legal position has since been clarified by the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR).
16. In that case, the Supreme Court considered the effect of its decision in Francis Karioko Muruatetu & Another v Republic on sentences prescribed under the Sexual Offences Act. The Supreme Court held that the decision in Muruatetu did not invalidate minimum sentences under the Sexual Offences Act. The Court further stated that minimum sentences set the floor and not the ceiling, and that, unless a statutory provision is properly challenged and declared unconstitutional, courts must apply the law as enacted by Parliament.
17. The Supreme Court stated that, although sentencing is an exercise of judicial discretion, it is Parliament, and not the Judiciary, that sets the statutory parameters of sentencing. The Court further held that the sentence imposed by the trial court under section 8 of the Sexual Offences Act remains lawful as long as the said section is still valid.
18. I am bound by the decision of the Supreme Court by virtue of Article 163(7) of the Constitution. The sentence prescribed under section 8(3) of the Sexual Offences Act is a minimum sentence of twenty (20) years’ imprisonment. The learned trial magistrate imposed the statutory minimum sentence. She did not impose a sentence above the statutory minimum.
19. The appellant also invoked Article 50(2)(p) of the Constitution, which entitles an accused person to the benefit of the least severe punishment where the prescribed punishment for an offence has changed between the time the offence was committed and the time of sentencing. In the instant case, the punishment prescribed under section 8(3) of the Sexual Offences Act had not changed. Article 50(2)(p) therefore does not assist the appellant.
20. I have also considered the appellant’s mitigation that he is reformed, of good conduct in prison, and has young school-going children. Those are relevant mitigation factors. However, in view of the statutory minimum sentence prescribed by section 8(3), and in view of the binding decision of the Supreme Court in Republic v Mwangi, this Court has no lawful basis to reduce the sentence below twenty (20) years.
21. I therefore find that the sentence of twenty (20) years’ imprisonment imposed by the learned trial magistrate was lawful. It was neither harsh nor excessive in the circumstances, as it was the minimum sentence prescribed by law.
Disposition
22. The appeal against conviction having been abandoned, and the appeal against sentence having been found to be without merit, the appeal is hereby dismissed.
23. The conviction and sentence of the trial court are upheld.
T.A ODERA
JUDGE
25.11.25
Delivered virtually on this 25th day of November 2025 in the presence of :
The appellant , Miss Mokua for the State and CA- Ogendo
JUDGMENT
1. The appellant, Samwel Mwita Marwa, was charged before the lower court with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. The particulars of the charge were that on diverse dates between 1st September 2023 and 14th March 2024, at Annian Academy in Homa Bay Sub-County within Homa Bay County, he intentionally caused his penis to penetrate the anus of J.M.O., a child aged 12 years.
2. The appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars were that on diverse dates between 1st September 2023 and 14th March 2024, at Annian Academy in Homa Bay Sub-County within Homa Bay County, he intentionally touched the anus, penis and buttocks of J.M.O., a child aged 12 years, with his hands.
3. The appellant pleaded not guilty. The matter proceeded to full trial. At the conclusion of the trial, the learned trial magistrate convicted the appellant on the main count and sentenced him to serve twenty (20) years’ imprisonment.
4. Being dissatisfied with the conviction and sentence, the appellant filed the present appeal on the following grounds:
a. That the offence was not proved.
b. That the learned trial magistrate disregarded the discrepancies in the evidence of the complainant, thereby occasioning him injustice.
c. That the learned trial magistrate misdirected herself by failing to critically analyse the entire evidence on record and to find that the inconsistencies could not sustain a conviction.
5. This being a first appeal, this Court is under a duty to re-evaluate the entire evidence on record and draw its own independent conclusions, while bearing in mind that it did not see or hear the witnesses testify. In Kiilu & Another v Republic [2005] 1 KLR 174, the Court of Appeal held that a first appellate court must subject the evidence as a whole to a fresh and exhaustive examination and make its own decision on the evidence.
6. In his written submissions dated 3rd September 2025, the appellant stated that he had abandoned the appeal against conviction and would only pursue the appeal against sentence. He submitted that the sentence imposed was excessive and urged the Court to interfere with it. He further submitted that he is reformed, has been of good conduct while in prison, is a family man, and has young school-going children.
7. The appellant also submitted that this Court has power to review his sentence under section 354(3) of the Criminal Procedure Code. He further relied on Article 50(2)(p) of the Constitution and argued that he was entitled to the least severe sentence. He cited Daniel Onyango Ochar v Republic [2020] KEHC 3887 (KLR) and Geoffrey Odhiambo Odhiambo, Siaya Criminal Appeal No. 74 of 2019.
8. Although the State indicated that it had filed submissions, I have not found the same either on the Judiciary e-filing portal or in the physical file. The appeal is therefore not opposed. However, the fact that an appeal is unopposed does not automatically entitle an appellant to the orders sought. The Court is still required to satisfy itself that the appeal has merit.
9. I have carefully considered the record of appeal, the proceedings before the trial court, the judgment of the learned trial magistrate, and the appellant’s submissions.
Issues for Determination
10. Since the appellant abandoned the appeal against conviction and only pursued the appeal against sentence, the issues that arise for determination are:
a. Whether the age of the complainant placed the offence within section 8(3) of the Sexual Offences Act; and
b. Whether the sentence of twenty (20) years’ imprisonment was harsh, excessive or unlawful.
Analysis and Determination
Whether the age of the complainant was proved
11. Although the appellant abandoned the appeal against conviction, the age of the complainant remains relevant because sentences under section 8 of the Sexual Offences Act are pegged on the age of the victim.
12. The complainant, PW1, testified that he was 12 years old. His evidence on age was supported by the evidence of his mother, PW3, and by the birth certificate produced as PExh. 1. I am satisfied that the complainant’s age was proved. I therefore find that the complainant was 12 years old at the material time.
13. The offence therefore fell under section 8(1) as read with section 8(3) of the Sexual Offences Act.
Whether the sentence was harsh or excessive
14. Section 8(3) of the Sexual Offences Act provides that a person who commits an offence of defilement with a child aged between 12 and 15 years is liable, upon conviction, to imprisonment for a term of not less than twenty (20) years.
15. The appellant urged this Court to reduce the sentence and relied on Daniel Onyango Ochar v Republic [2020] KEHC 3887 (KLR), where the High Court reduced a sentence imposed under section 8(3) of the Sexual Offences Act from twenty (20) years to fifteen (15) years. I have considered that decision. However, the legal position has since been clarified by the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR).
16. In that case, the Supreme Court considered the effect of its decision in Francis Karioko Muruatetu & Another v Republic on sentences prescribed under the Sexual Offences Act. The Supreme Court held that the decision in Muruatetu did not invalidate minimum sentences under the Sexual Offences Act. The Court further stated that minimum sentences set the floor and not the ceiling, and that, unless a statutory provision is properly challenged and declared unconstitutional, courts must apply the law as enacted by Parliament.
17. The Supreme Court stated that, although sentencing is an exercise of judicial discretion, it is Parliament, and not the Judiciary, that sets the statutory parameters of sentencing. The Court further held that the sentence imposed by the trial court under section 8 of the Sexual Offences Act remains lawful as long as the said section is still valid.
18. I am bound by the decision of the Supreme Court by virtue of Article 163(7) of the Constitution. The sentence prescribed under section 8(3) of the Sexual Offences Act is a minimum sentence of twenty (20) years’ imprisonment. The learned trial magistrate imposed the statutory minimum sentence. She did not impose a sentence above the statutory minimum.
19. The appellant also invoked Article 50(2)(p) of the Constitution, which entitles an accused person to the benefit of the least severe punishment where the prescribed punishment for an offence has changed between the time the offence was committed and the time of sentencing. In the instant case, the punishment prescribed under section 8(3) of the Sexual Offences Act had not changed. Article 50(2)(p) therefore does not assist the appellant.
20. I have also considered the appellant’s mitigation that he is reformed, of good conduct in prison, and has young school-going children. Those are relevant mitigation factors. However, in view of the statutory minimum sentence prescribed by section 8(3), and in view of the binding decision of the Supreme Court in Republic v Mwangi, this Court has no lawful basis to reduce the sentence below twenty (20) years.
21. I therefore find that the sentence of twenty (20) years’ imprisonment imposed by the learned trial magistrate was lawful. It was neither harsh nor excessive in the circumstances, as it was the minimum sentence prescribed by law.
Disposition
22. The appeal against conviction having been abandoned, and the appeal against sentence having been found to be without merit, the appeal is hereby dismissed.
23. The conviction and sentence of the trial court are upheld.
T.A ODERA
JUDGE
25.11.25
Delivered virtually on this 25th day of November 2025 in the presence of :
The appellant , Miss Mokua for the State and CA- Ogendo