1. The Appellant herein was charged in Senior Resident Magistrate's Court at Kenol S.O.No. E021 of 2024 with the offence of attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act ,No. 3 of 2006.
2. The particulars were as set per the charge sheet were that on 15/05/2024, at around 1730 hrs at Githanje area in Kenol township, within Murang'a County, the appellant intentionally attempted to cause his penis to penetrate the vagina of L. W. M, a child aged 4 years.
3. In the alternative he was charged with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
4. He pleaded guilty and was sentenced to serve 10 years imprisonment on the 25th Day of March 2025.
5. He lodged amended grounds of appeal dated this17th day of February, 2026 wherein he raises the following grounds of appeal;
1) THAT, the learned trial magistrate erred in law and fact by failing to consider the Appellant's severe and medically-documented mental illness as a mitigating factor, contrary to the Sentencing Policy Guidelines (2023) and Article 28 of the Constitution.
2) THAT, the learned trial magistrate misapplied the Supreme Court decision in Republic v Joshua Gichuki Mwangi by treating the minimum sentence as mandatory, thereby fettering judicial discretion.
3) THAT, the learned trial magistrate failed to consider the Appellant's status as a first offender, his remorse, his guilty plea, and the victim's family's forgiveness, contrary to established sentencing jurisprudence.
4) THAT, the sentence imposed was harsh, excessive, and disproportionate to the circumstances of the case, contrary to Articles 27, 28, 50(2)(q), and 159(2)(d) of the Constitution.
6. He is urging this court to quash the conviction, and set aside the sentence.
Appellant’s Submissions;
7. His submissions are predicated on Article 50(2)(q) of the Constitution, Section 354(3)(b) of the Criminal Procedure Code, and Section 9(1) as read with 9(2) of the Sexual Offences Act No. 3 of 2006, challenging only the sentence imposed by the Senior Resident Magistrate at Kenol on 25th March 2025.
8. He argues that the learned trial magistrate failed to properly apply the Sentencing Policy Guidelines (2023), failed to consider his mental health condition, and misapplied the Supreme Court decision in Republic v Joshua Gichuki Mwangi (Petition No. E018 of 2023).
9. He approaches this Court with remorse, humility, and a genuine desire for rehabilitation, praying that the sentence be reconsidered, reduced, or substituted with a more proportionate and restorative alternative.
10. A Pre-Sentence Report dated 25th March 2024 was filed.It contained critical findings:
a) The Appellant suffers from mental illness dating back 15 years.
b) He is HIV-positive, which triggered depression and mental breakdown.
c) During interview, he was incoherent, "talking gibberish," and unable to understand the weight of the offence.
d) The local administration confirmed his long-standing mental instability.
e) The victim's mother forgave him and was not opposed to a non-custodial sentence.
f) The probation officer concluded that the Appellant was not suitable for a non-custodial sentence, but this was based solely on his mental incoherence, not on risk assessment.
11. When sentencing him, the trial court relied heavily on the Supreme Court decision in Republic v Joshua Gichuki Mwangi, which upheld the constitutionality of mandatory minimum sentences. This undermines the principles of justice and fairness according to him given that during mitigation, the Appellant stated,"Nilikuwa nacheza naye.'
12. In relation to ground 1,it is his submission that the learned trial magistrate erred in law and fact by failing to consider the Appellant's severe and medically-documented mental illness as a mitigating (actor. Contrary to the Sentencing Policy Guidelines (2023) and Article 28 of the Constitution.
13. Mental illness significantly impacts an offender's culpability and the appropriate sentencing approach.
14. The failure to consider the Appellant's mental health condition 12. The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) emphasize the need for special treatment of prisoners with mental health conditions, advocating for alternatives to incarceration where possible.
15. The Appellant's mental illness, compounded by his HIV-positive status and socio-economic challenges, necessitates a sentencing approach focused on rehabilitation rather than punishment.
16. By disregarding all this, the court violated his right as guaranteed under Article 28, which mandates respect for human dignity and humane treatment.
17. The failure to consider his mental illness led to disproportionate sentencing of vulnerable individuals.
18. The Appellant's mental health condition profoundly diminishes his moral culpability, as mental illness can impair judgment, impulse control, and understanding of the consequences of one's actions.
19. International human rights bodies, including the United Nations Human Rights Committee, have consistently urged states to ensure that persons with mental disabilities are treated with dignity and that sentencing reflects their condition, favoring rehabilitation over punitive measures.
20. His long history of untreated mental illness, exacerbated by socio-economic hardships such as poverty and lack of access to continuous medical care, highlights systemic failures that should be taken into account to avoid compounding his vulnerability.
21. The reliance on a superficial probation officer's report disregards the nuanced understanding required in cases involving mental health.
22. Sentencing that ignores mental illness risks violating constitutional protections against cruel, inhuman, or degrading treatment, as incarceration without appropriate mental health support can exacerbate the Appellant's condition.
23. Rehabilitation-focused sentencing aligns with the principles of restorative justice, which seek to repair harm while addressing the offender's underlying needs, promoting societal reintegration and reducing recidivism.
24. He submits that a custodial sentence without adequate mental health treatment is not only disproportionate but also counterproductive to public safety and justice.
25. In buttressing ground 2,he argues that The Supreme Court held that minimum sentences are constitutional, but also clarified:
"Minimum sentences set the floor, not the ceiling. Courts retain discretion to impose higher or lower sentences depending on circumstances. "The decision did not remove judicial discretion. The trial court treated the minimum sentence as mandatory, stating:
"The Supreme Court affirmed mandatory sentences... the accused is sentenced to ten years.
26. The minimum for attempted defilement is not 10 years; Section 9(2) prescribes not less than 10 years, meaning the court could impose 10 years or more, but must still consider mitigation according to him.
27. The appellant submits that the court failed to consider:
a) Mental illness
b) Guilty plea
c) First offender status
d) Victim's family forgiveness
28. He submits that the sentence was imposed on a wrong legal foundation and must be revised.
29. In advancing ground 3 he argues that The Sentencing Policy Guidelines (2023) list the following as mitigating:
a. Guilty plea
b. First offender
c. Mental illness
d. Remorse
e. Community reintegration prospects
f. Victim forgiveness
30. In Adan v Republic (1973) EA 445, the Court of Appeal held that a guilty plea should attract leniency.
31. The Appellant Pleaded guilty at the earliest opportunity, is a first offender, was forgiven by the victim's family, reflecting community support and the potential for restorative justice. He expressed genuine remorse, an important factor in assessing the offender's attitude and likelihood of rehabilitation.
32. On ground 4,he argues that Article 50(2)(q) guarantees the right to the least severe punishment.
33. Article 27 prohibits disproportionate punishment. In Francis Karioko Muruatetu (2021) Directions, the Supreme Court emphasized individualized sentencing.
34. He submits that his circumstances called for a reduced sentence, not the statutory minimum.
35. The Appellant prays that this Honourable Court be pleased to:
a) Revise the sentence under Section 354(3)
b) CPC;
c) Reduce the custodial term to a lesser, proportionate sentence;
d) Consider a partially suspended sentence or a shorter custodial term with mandatory mental-health treatment',
e) Grant any other orders that meet the ends of justice.
The Respondents Submissions;
36. In opposing the Appeal The Respondent submitted that the Appellant was charged with the offence of attempted defilement contrary to section 9(1) as read with Section 9(2) of the Sexual Offences Act, No. 3 of 2006.
37. The Particulars as per the chargesheet were that on 15/05/2024, at around 1730 hrs at Githanje area in Kenol township, within Murang'a County, the appellant intentionally attempted to cause his penis to penetrate the vagina of L. W. M., a child aged 4 years.
38. In the alternative he was charged with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
39. He pleaded guilty and was sentenced to serve 10 years imprisonment.
40. In his Petition of appeal, the appellant raises various grounds of appeal alleging failure to prove the case beyond reasonable doubt, and trial court ignoring the-mitigation.
41. It is its case that the appeal against the conviction is incompetent as it is in direct contravention of Section 348 of the Criminal Procedure Code which states:
"No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence."
42. At the point of taking plea on 21/05/2024, the appellant pleaded guilty, despite the Court warning him twice on the consequences of a guilty plea.
43. On 22/05/2024 he pleaded guilty and this prompted an order for mental assessment.
44. The accused was referred for medical treatment and when he was finally fit to stand trial, directions were taken under Section 164 of the CPC.
45. The accused again pleaded guilty on 05/02/2025, despite two warnings.
46. The appellant called the complainant and another child to his house, gave them snacks, told them to lie on the bed, removed his clothes and lied on them in turns.
47. He put his penis on top of the complainant's vagina. The minors were called by their mother and the appellant told them to leave.The complainants mother saw him zipping up his pants.
48. The complainant's treatment documents were produced as well as her birth certificate showing she was 4 years old.
49. In his mitigation, the appellant just stated that he was playing with the complainant.
50. The facts were clear that the offence of attempted defilement was committed by the appellant.
51. The trial court went to an extent of calling for a pre-sentence report.
52. However, the court rightly followed the Supreme Court decision in Petition E018 of 2023, Republic vs Joshua Gichuld Mwangi where they overturned the Court of Appeal decision allowing magistrates to deviate from the minimum mandatory sentences in the Sexual Offence Act.
53. The sentence of 10 years was therefore both legal, and commensurate to the offence committed according to the Respondent.
Analysis and determination;
54. The issue for determination is whether the trial court misapplied the law, ignored critical mitigating factors, and imposed a sentence that was excessive, disproportionate, and not aligned with modern sentencing principles.
55. On 21/05/2024, the appellant pleaded guilty, despite the Court warning him twice on the consequences of a guilty plea on 22/05/2024 he pleaded guilty.
56. He was referred for medical treatment and when he was finally fit to stand trial, directions were taken under Section 164 of the CPC.
57. Section 348 of the Criminal Procedure Code which states:
"No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence."
58. He is not challenging the conviction and I shall not disturb it.
59. The court has reviewed the record and satisfied itself from the birth certificate of the victim, that at the time of the offence, the child was 4 years old and that The appellant was identified at the scene of the crime.
60. On the appeal against sentencing the court notes that the appellant mitigated to the effect that he was playing with the victim the day the offence is said to have been committed.
61. The court was seized of his pre-sentence report before sentencing him to serve 10 years imprisonment and the learned trial magistrate was aware of her duty to apply the Sentencing Policy Guidelines (2023).
62. This court notes that the trial court was also seized of and knew of the appellant’s mental condition right from the time the plea was taken and she was alive to the Appellant's mental health condition.
63. The Supreme Court decision in Petition E018 of 2023, Republic vs Joshua Gichuld Mwangi overturned the Court of Appeal decision allowing magistrates to deviate from the minimum mandatory sentences in the Sexual Offence Act.
64. The court is of the view that the trial court did not give weight to the Pre-Sentence Report dated 25th March 2024.It contained critical findings:
a) The Appellant suffers from mental illness dating back 15 years.
b) He is HIV-positive, which triggered depression and mental breakdown.
c) During interview, he was incoherent, "talking gibberish," and unable to understand the weight of the offence.
d) The local administration confirmed his long-standing mental instability.
e) The victim's mother forgave him and was not opposed to a non-custodial sentence.
f) The probation officer concluded that the Appellant was not suitable for a non-custodial sentence, but this was based solely on his mental incoherence, not on risk assessment.
65. The Sentencing Policy Guidelines (2023) list the following as mitigating:
a) Guilty plea.
b) First offender.
c) Mental illness.
d) Remorse.
e) Community reintegration prospects.
f) Victim forgiveness.
66. The court also notes that the trial court failed to consider the factors as set out in the Sentencing Policy Guidelines (2023).
67. A custodial sentence without an adequate mental health treatment order is not only disproportionate but also counterproductive in my opinion.
68. The fact that the presentencing report pointed at the fact that the Appellant has suffered from mental illness dating back 15 years should have weighed heavily in the trial magistrates mind when sentencing the appellant.
69. In issuing the orders below, this court has reminded itself that the appellant pleaded guilty and was forgiven by the child’s mother.
70. The court further reminds itself that the victim shall live with an indelible emotional scar and trauma for the rest of her life.
Determination:
71. The appeal has merit.
Order:
1) The conviction shall not be disturbed.
2) A probation officer’s report shall be prepared within 14 days.
3) The case shall be mentioned on for further directions on the aspect of the sentencing 2.7.26.
Dated, signed and delivered virtually at Eldoret this 19th day of June 2026.
2. The particulars were as set per the charge sheet were that on 15/05/2024, at around 1730 hrs at Githanje area in Kenol township, within Murang'a County, the appellant intentionally attempted to cause his penis to penetrate the vagina of L. W. M, a child aged 4 years.
3. In the alternative he was charged with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
4. He pleaded guilty and was sentenced to serve 10 years imprisonment on the 25th Day of March 2025.
5. He lodged amended grounds of appeal dated this17th day of February, 2026 wherein he raises the following grounds of appeal;
1) THAT, the learned trial magistrate erred in law and fact by failing to consider the Appellant's severe and medically-documented mental illness as a mitigating factor, contrary to the Sentencing Policy Guidelines (2023) and Article 28 of the Constitution.
2) THAT, the learned trial magistrate misapplied the Supreme Court decision in Republic v Joshua Gichuki Mwangi by treating the minimum sentence as mandatory, thereby fettering judicial discretion.
3) THAT, the learned trial magistrate failed to consider the Appellant's status as a first offender, his remorse, his guilty plea, and the victim's family's forgiveness, contrary to established sentencing jurisprudence.
4) THAT, the sentence imposed was harsh, excessive, and disproportionate to the circumstances of the case, contrary to Articles 27, 28, 50(2)(q), and 159(2)(d) of the Constitution.
6. He is urging this court to quash the conviction, and set aside the sentence.
Appellant’s Submissions;
7. His submissions are predicated on Article 50(2)(q) of the Constitution, Section 354(3)(b) of the Criminal Procedure Code, and Section 9(1) as read with 9(2) of the Sexual Offences Act No. 3 of 2006, challenging only the sentence imposed by the Senior Resident Magistrate at Kenol on 25th March 2025.
8. He argues that the learned trial magistrate failed to properly apply the Sentencing Policy Guidelines (2023), failed to consider his mental health condition, and misapplied the Supreme Court decision in Republic v Joshua Gichuki Mwangi (Petition No. E018 of 2023).
9. He approaches this Court with remorse, humility, and a genuine desire for rehabilitation, praying that the sentence be reconsidered, reduced, or substituted with a more proportionate and restorative alternative.
10. A Pre-Sentence Report dated 25th March 2024 was filed.It contained critical findings:
a) The Appellant suffers from mental illness dating back 15 years.
b) He is HIV-positive, which triggered depression and mental breakdown.
c) During interview, he was incoherent, "talking gibberish," and unable to understand the weight of the offence.
d) The local administration confirmed his long-standing mental instability.
e) The victim's mother forgave him and was not opposed to a non-custodial sentence.
f) The probation officer concluded that the Appellant was not suitable for a non-custodial sentence, but this was based solely on his mental incoherence, not on risk assessment.
11. When sentencing him, the trial court relied heavily on the Supreme Court decision in Republic v Joshua Gichuki Mwangi, which upheld the constitutionality of mandatory minimum sentences. This undermines the principles of justice and fairness according to him given that during mitigation, the Appellant stated,"Nilikuwa nacheza naye.'
12. In relation to ground 1,it is his submission that the learned trial magistrate erred in law and fact by failing to consider the Appellant's severe and medically-documented mental illness as a mitigating (actor. Contrary to the Sentencing Policy Guidelines (2023) and Article 28 of the Constitution.
13. Mental illness significantly impacts an offender's culpability and the appropriate sentencing approach.
14. The failure to consider the Appellant's mental health condition 12. The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) emphasize the need for special treatment of prisoners with mental health conditions, advocating for alternatives to incarceration where possible.
15. The Appellant's mental illness, compounded by his HIV-positive status and socio-economic challenges, necessitates a sentencing approach focused on rehabilitation rather than punishment.
16. By disregarding all this, the court violated his right as guaranteed under Article 28, which mandates respect for human dignity and humane treatment.
17. The failure to consider his mental illness led to disproportionate sentencing of vulnerable individuals.
18. The Appellant's mental health condition profoundly diminishes his moral culpability, as mental illness can impair judgment, impulse control, and understanding of the consequences of one's actions.
19. International human rights bodies, including the United Nations Human Rights Committee, have consistently urged states to ensure that persons with mental disabilities are treated with dignity and that sentencing reflects their condition, favoring rehabilitation over punitive measures.
20. His long history of untreated mental illness, exacerbated by socio-economic hardships such as poverty and lack of access to continuous medical care, highlights systemic failures that should be taken into account to avoid compounding his vulnerability.
21. The reliance on a superficial probation officer's report disregards the nuanced understanding required in cases involving mental health.
22. Sentencing that ignores mental illness risks violating constitutional protections against cruel, inhuman, or degrading treatment, as incarceration without appropriate mental health support can exacerbate the Appellant's condition.
23. Rehabilitation-focused sentencing aligns with the principles of restorative justice, which seek to repair harm while addressing the offender's underlying needs, promoting societal reintegration and reducing recidivism.
24. He submits that a custodial sentence without adequate mental health treatment is not only disproportionate but also counterproductive to public safety and justice.
25. In buttressing ground 2,he argues that The Supreme Court held that minimum sentences are constitutional, but also clarified:
"Minimum sentences set the floor, not the ceiling. Courts retain discretion to impose higher or lower sentences depending on circumstances. "The decision did not remove judicial discretion. The trial court treated the minimum sentence as mandatory, stating:
"The Supreme Court affirmed mandatory sentences... the accused is sentenced to ten years.
26. The minimum for attempted defilement is not 10 years; Section 9(2) prescribes not less than 10 years, meaning the court could impose 10 years or more, but must still consider mitigation according to him.
27. The appellant submits that the court failed to consider:
a) Mental illness
b) Guilty plea
c) First offender status
d) Victim's family forgiveness
28. He submits that the sentence was imposed on a wrong legal foundation and must be revised.
29. In advancing ground 3 he argues that The Sentencing Policy Guidelines (2023) list the following as mitigating:
a. Guilty plea
b. First offender
c. Mental illness
d. Remorse
e. Community reintegration prospects
f. Victim forgiveness
30. In Adan v Republic (1973) EA 445, the Court of Appeal held that a guilty plea should attract leniency.
31. The Appellant Pleaded guilty at the earliest opportunity, is a first offender, was forgiven by the victim's family, reflecting community support and the potential for restorative justice. He expressed genuine remorse, an important factor in assessing the offender's attitude and likelihood of rehabilitation.
32. On ground 4,he argues that Article 50(2)(q) guarantees the right to the least severe punishment.
33. Article 27 prohibits disproportionate punishment. In Francis Karioko Muruatetu (2021) Directions, the Supreme Court emphasized individualized sentencing.
34. He submits that his circumstances called for a reduced sentence, not the statutory minimum.
35. The Appellant prays that this Honourable Court be pleased to:
a) Revise the sentence under Section 354(3)
b) CPC;
c) Reduce the custodial term to a lesser, proportionate sentence;
d) Consider a partially suspended sentence or a shorter custodial term with mandatory mental-health treatment',
e) Grant any other orders that meet the ends of justice.
The Respondents Submissions;
36. In opposing the Appeal The Respondent submitted that the Appellant was charged with the offence of attempted defilement contrary to section 9(1) as read with Section 9(2) of the Sexual Offences Act, No. 3 of 2006.
37. The Particulars as per the chargesheet were that on 15/05/2024, at around 1730 hrs at Githanje area in Kenol township, within Murang'a County, the appellant intentionally attempted to cause his penis to penetrate the vagina of L. W. M., a child aged 4 years.
38. In the alternative he was charged with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
39. He pleaded guilty and was sentenced to serve 10 years imprisonment.
40. In his Petition of appeal, the appellant raises various grounds of appeal alleging failure to prove the case beyond reasonable doubt, and trial court ignoring the-mitigation.
41. It is its case that the appeal against the conviction is incompetent as it is in direct contravention of Section 348 of the Criminal Procedure Code which states:
"No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence."
42. At the point of taking plea on 21/05/2024, the appellant pleaded guilty, despite the Court warning him twice on the consequences of a guilty plea.
43. On 22/05/2024 he pleaded guilty and this prompted an order for mental assessment.
44. The accused was referred for medical treatment and when he was finally fit to stand trial, directions were taken under Section 164 of the CPC.
45. The accused again pleaded guilty on 05/02/2025, despite two warnings.
46. The appellant called the complainant and another child to his house, gave them snacks, told them to lie on the bed, removed his clothes and lied on them in turns.
47. He put his penis on top of the complainant's vagina. The minors were called by their mother and the appellant told them to leave.The complainants mother saw him zipping up his pants.
48. The complainant's treatment documents were produced as well as her birth certificate showing she was 4 years old.
49. In his mitigation, the appellant just stated that he was playing with the complainant.
50. The facts were clear that the offence of attempted defilement was committed by the appellant.
51. The trial court went to an extent of calling for a pre-sentence report.
52. However, the court rightly followed the Supreme Court decision in Petition E018 of 2023, Republic vs Joshua Gichuld Mwangi where they overturned the Court of Appeal decision allowing magistrates to deviate from the minimum mandatory sentences in the Sexual Offence Act.
53. The sentence of 10 years was therefore both legal, and commensurate to the offence committed according to the Respondent.
Analysis and determination;
54. The issue for determination is whether the trial court misapplied the law, ignored critical mitigating factors, and imposed a sentence that was excessive, disproportionate, and not aligned with modern sentencing principles.
55. On 21/05/2024, the appellant pleaded guilty, despite the Court warning him twice on the consequences of a guilty plea on 22/05/2024 he pleaded guilty.
56. He was referred for medical treatment and when he was finally fit to stand trial, directions were taken under Section 164 of the CPC.
57. Section 348 of the Criminal Procedure Code which states:
"No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence."
58. He is not challenging the conviction and I shall not disturb it.
59. The court has reviewed the record and satisfied itself from the birth certificate of the victim, that at the time of the offence, the child was 4 years old and that The appellant was identified at the scene of the crime.
60. On the appeal against sentencing the court notes that the appellant mitigated to the effect that he was playing with the victim the day the offence is said to have been committed.
61. The court was seized of his pre-sentence report before sentencing him to serve 10 years imprisonment and the learned trial magistrate was aware of her duty to apply the Sentencing Policy Guidelines (2023).
62. This court notes that the trial court was also seized of and knew of the appellant’s mental condition right from the time the plea was taken and she was alive to the Appellant's mental health condition.
63. The Supreme Court decision in Petition E018 of 2023, Republic vs Joshua Gichuld Mwangi overturned the Court of Appeal decision allowing magistrates to deviate from the minimum mandatory sentences in the Sexual Offence Act.
64. The court is of the view that the trial court did not give weight to the Pre-Sentence Report dated 25th March 2024.It contained critical findings:
a) The Appellant suffers from mental illness dating back 15 years.
b) He is HIV-positive, which triggered depression and mental breakdown.
c) During interview, he was incoherent, "talking gibberish," and unable to understand the weight of the offence.
d) The local administration confirmed his long-standing mental instability.
e) The victim's mother forgave him and was not opposed to a non-custodial sentence.
f) The probation officer concluded that the Appellant was not suitable for a non-custodial sentence, but this was based solely on his mental incoherence, not on risk assessment.
65. The Sentencing Policy Guidelines (2023) list the following as mitigating:
a) Guilty plea.
b) First offender.
c) Mental illness.
d) Remorse.
e) Community reintegration prospects.
f) Victim forgiveness.
66. The court also notes that the trial court failed to consider the factors as set out in the Sentencing Policy Guidelines (2023).
67. A custodial sentence without an adequate mental health treatment order is not only disproportionate but also counterproductive in my opinion.
68. The fact that the presentencing report pointed at the fact that the Appellant has suffered from mental illness dating back 15 years should have weighed heavily in the trial magistrates mind when sentencing the appellant.
69. In issuing the orders below, this court has reminded itself that the appellant pleaded guilty and was forgiven by the child’s mother.
70. The court further reminds itself that the victim shall live with an indelible emotional scar and trauma for the rest of her life.
Determination:
71. The appeal has merit.
Order:
1) The conviction shall not be disturbed.
2) A probation officer’s report shall be prepared within 14 days.
3) The case shall be mentioned on for further directions on the aspect of the sentencing 2.7.26.
Dated, signed and delivered virtually at Eldoret this 19th day of June 2026.