' (Being an Appeal against the Sentence at the Principal Magistrate’s Court in Keroka, CMCCR (SO) e005 of 2022 delivered by Hon. B.M. Kimtai, Principal Magistrate on 26 th October 2022)
In its Judgement rendered on 18 th September 2025, this court upheld the Appellant’s conviction by the trial court on the charge of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act. Owing to the fact that a child was sired as a result of the Appellant’s criminal conduct, the Court called for a Probation Officer’s Pre-Sentence Report to establish the prevailing circumstances of the victim and her child.
The Probation Officer filed a Pre-sentence report dated 6 th October 2025 which I have carefully considered.
It is trite that a convicted person may be subjected to various forms of punishment as stipulated by the law including non-custodial sentences. I have reviewed the unique circumstances of this case and found that it will be appropriate to mete a sentence that not only denounces the Appellant’s criminal conduct and adequately punishes him but also equally protects the best interests of the minor victim and her child.
It is in this context that I have deemed it necessary to consider the meting a suspended sentence which is essentially an alternative to imprisonment where a court of law may partially or entirely suspend a convicted person’s prison sentence upon fulfilment of certain conditions.
Section 15 of the Criminal Procedure Code provides for suspended sentences as follows: -
5. Suspended Sentences
Any court which passes a sentence of imprisonment for a term of not more than two years for any offence may order that the sentence shall not take effect unless during the period specified by the court (hereinafter called the "operational period") the offender commits another offence, whether that offence is punishable by imprisonment, corporal punishment or by a fine.
Where the offender is convicted of an offence during the operational period the sentence for the first offence in respect of which the offender was convicted under subsection (1) shall thereupon take effect.
Where under subsection (2) the sentence passed for the first offence under subsection (1) takes effect the sentence passed for the subsequent offence shall run consecutively to the sentence passed for the first offence.
Similarly, the Sentencing Policy Guidelines (2016) also make mention of suspended sentences at page 33 as follows: -
15. Suspended sentences
15.1. Section 15 of the Criminal Procedure Code allows the court, when it passes a sentence of not more than two years imprisonment, to suspend a sentence of imprisonment for a fixed period of time. If the offender does not commit an offence during the fixed period, then the sentence does not take effect. In the event that the offender commits an offence during the fixed period, then the sentence takes
effect and the sentence for the second offence runs consecutively with the original sentence.
Situational Analysis
15.2. The lack of digital records at police stations and courts provides loopholes and offenders on suspended sentences may get away without serving their original sentence.
15.3. There are cases in which offenders are suitable candidates for suspended sentences but are sentenced to serve prison terms instead.
Policy Directions
15.4 Orders suspending sentences are desirable in relation to petty offenders who are likely to respond to the incentive to remain law-abiding. The court should take into account the policy guidelines as to whether to impose a custodial or non-custodial sentence.
15.5 Bearing these guidelines in mind, suspended imprisonment is desirable where it is evident that commencing the imprisonment immediately would result in undue prejudice or injustice to the offender hence making the punishment excessive .
Suspended sentences are based on public policy goals of rehabilitating offenders and in this case, promoting the best interests of the innocent child born out of the offence. I note that the victim was able to resume her education and is now in high school while her child, the product of the crime, is 3 ½ years old and due to start school in the coming year. The Sentence Review Report indicates that both the victim and her child depend on the victim’s parents for their upkeep and that finances for their school fees and upkeep are a major challenge.
The Probation Officer’s report reveals that the child is in dire straits and faces a bleak future since his mother, the victim in this case, is still living with her parents and wholly depends on them.
The Constitution of Kenya (Article 53(2)) and the Children Act require the court to prioritize the best interests of the child. In this case, the child born of the offence stands to suffer if the Appellant is imprisoned for a long term without contributing to the child’s welfare.
The Sentence Review Report indicates potential for the Appellant’s reformation and rehabilitation, and also highlights dire socio-economic circumstances for the victim’s child.
While Section 15 of the Criminal Procedure Code allows suspended sentences, it limits them to imprisonment terms not exceeding two years. Given that the Sexual Offences Act prescribes a minimum sentence of 20 years, this Court cannot lawfully suspend such a statutory custodial term.
However, this Court has discretion to review sentence and impose a reduced custodial term, or order a partially suspended sentence or probationary supervision, in exceptional cases involving child victims where societal and rehabilitative interests are paramount.
In the present case, I note that the Appellant has been in custody since his arrest and subsequent conviction on 21 st January 2022 and 2 nd November 2022 respectively. In other words, the Appellant has so far served a substantial part (4 years) out of his 20 years sentence. Considering that the Appellant’s 20 years sentence would also have been subjected to remission of approximately 7 years, I find that the Appellant is left with about 9 years to complete his prison term. This period also factors in the period that the Appellant spent in remand custody while awaiting his trial in line with the provisions of Section 333(2) of the Criminal Procedure Code.
This court is acutely aware of its role in sentencing and while it acknowledges the seriousness of the offence, it is also required to promote rehabilitation, protect the best interests of the child, and be careful to align its decision with the constitutional and policy principles of proportionality and restorative justice.
It is my considered view that given the gravity of the offence and the unique humanitarian considerations, the most legally tenable and balanced sentence would be to make an order that the Appellant serves probationary order for 3 years while the remaining 6 years shall be suspended on condition that he does not commit any offence during the suspension period. The Appellant shall, during the said period be required to actively participate in the maintenance and welfare of the child under the supervision of the Probation Department.
I therefore make the following final orders: -
The Appellant shall serve probationary order for 3 years while the remaining 6 years shall be suspended on condition that he does not commit any offence during the suspension period, and that he shall actively participate in the maintenance and welfare of the child under supervision of the Probation Department.
The probation period shall include mandatory counselling, community service, and parental support obligations
The Appellant shall cater for the minor’s upkeep and education, without fail, until the child attains the age of majority.
The Appellant shall maintain good conduct and not engage in any criminal activities for the period of the suspended sentence.
The Appellant shall be under the supervision the Probation Officer, Nyamira County Probation Office for the period of the suspended sentence.
In default of any of the above conditions, the suspended sentence shall be lifted and the Appellant shall immediately be arrested and sent to complete the remainder of his sentence in custody.
It is so ordered.
'
In its Judgement rendered on 18 th September 2025, this court upheld the Appellant’s conviction by the trial court on the charge of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act. Owing to the fact that a child was sired as a result of the Appellant’s criminal conduct, the Court called for a Probation Officer’s Pre-Sentence Report to establish the prevailing circumstances of the victim and her child.
The Probation Officer filed a Pre-sentence report dated 6 th October 2025 which I have carefully considered.
It is trite that a convicted person may be subjected to various forms of punishment as stipulated by the law including non-custodial sentences. I have reviewed the unique circumstances of this case and found that it will be appropriate to mete a sentence that not only denounces the Appellant’s criminal conduct and adequately punishes him but also equally protects the best interests of the minor victim and her child.
It is in this context that I have deemed it necessary to consider the meting a suspended sentence which is essentially an alternative to imprisonment where a court of law may partially or entirely suspend a convicted person’s prison sentence upon fulfilment of certain conditions.
Section 15 of the Criminal Procedure Code provides for suspended sentences as follows: -
5. Suspended Sentences
Any court which passes a sentence of imprisonment for a term of not more than two years for any offence may order that the sentence shall not take effect unless during the period specified by the court (hereinafter called the "operational period") the offender commits another offence, whether that offence is punishable by imprisonment, corporal punishment or by a fine.
Where the offender is convicted of an offence during the operational period the sentence for the first offence in respect of which the offender was convicted under subsection (1) shall thereupon take effect.
Where under subsection (2) the sentence passed for the first offence under subsection (1) takes effect the sentence passed for the subsequent offence shall run consecutively to the sentence passed for the first offence.
Similarly, the Sentencing Policy Guidelines (2016) also make mention of suspended sentences at page 33 as follows: -
15. Suspended sentences
15.1. Section 15 of the Criminal Procedure Code allows the court, when it passes a sentence of not more than two years imprisonment, to suspend a sentence of imprisonment for a fixed period of time. If the offender does not commit an offence during the fixed period, then the sentence does not take effect. In the event that the offender commits an offence during the fixed period, then the sentence takes
effect and the sentence for the second offence runs consecutively with the original sentence.
Situational Analysis
15.2. The lack of digital records at police stations and courts provides loopholes and offenders on suspended sentences may get away without serving their original sentence.
15.3. There are cases in which offenders are suitable candidates for suspended sentences but are sentenced to serve prison terms instead.
Policy Directions
15.4 Orders suspending sentences are desirable in relation to petty offenders who are likely to respond to the incentive to remain law-abiding. The court should take into account the policy guidelines as to whether to impose a custodial or non-custodial sentence.
15.5 Bearing these guidelines in mind, suspended imprisonment is desirable where it is evident that commencing the imprisonment immediately would result in undue prejudice or injustice to the offender hence making the punishment excessive .
Suspended sentences are based on public policy goals of rehabilitating offenders and in this case, promoting the best interests of the innocent child born out of the offence. I note that the victim was able to resume her education and is now in high school while her child, the product of the crime, is 3 ½ years old and due to start school in the coming year. The Sentence Review Report indicates that both the victim and her child depend on the victim’s parents for their upkeep and that finances for their school fees and upkeep are a major challenge.
The Probation Officer’s report reveals that the child is in dire straits and faces a bleak future since his mother, the victim in this case, is still living with her parents and wholly depends on them.
The Constitution of Kenya (Article 53(2)) and the Children Act require the court to prioritize the best interests of the child. In this case, the child born of the offence stands to suffer if the Appellant is imprisoned for a long term without contributing to the child’s welfare.
The Sentence Review Report indicates potential for the Appellant’s reformation and rehabilitation, and also highlights dire socio-economic circumstances for the victim’s child.
While Section 15 of the Criminal Procedure Code allows suspended sentences, it limits them to imprisonment terms not exceeding two years. Given that the Sexual Offences Act prescribes a minimum sentence of 20 years, this Court cannot lawfully suspend such a statutory custodial term.
However, this Court has discretion to review sentence and impose a reduced custodial term, or order a partially suspended sentence or probationary supervision, in exceptional cases involving child victims where societal and rehabilitative interests are paramount.
In the present case, I note that the Appellant has been in custody since his arrest and subsequent conviction on 21 st January 2022 and 2 nd November 2022 respectively. In other words, the Appellant has so far served a substantial part (4 years) out of his 20 years sentence. Considering that the Appellant’s 20 years sentence would also have been subjected to remission of approximately 7 years, I find that the Appellant is left with about 9 years to complete his prison term. This period also factors in the period that the Appellant spent in remand custody while awaiting his trial in line with the provisions of Section 333(2) of the Criminal Procedure Code.
This court is acutely aware of its role in sentencing and while it acknowledges the seriousness of the offence, it is also required to promote rehabilitation, protect the best interests of the child, and be careful to align its decision with the constitutional and policy principles of proportionality and restorative justice.
It is my considered view that given the gravity of the offence and the unique humanitarian considerations, the most legally tenable and balanced sentence would be to make an order that the Appellant serves probationary order for 3 years while the remaining 6 years shall be suspended on condition that he does not commit any offence during the suspension period. The Appellant shall, during the said period be required to actively participate in the maintenance and welfare of the child under the supervision of the Probation Department.
I therefore make the following final orders: -
The Appellant shall serve probationary order for 3 years while the remaining 6 years shall be suspended on condition that he does not commit any offence during the suspension period, and that he shall actively participate in the maintenance and welfare of the child under supervision of the Probation Department.
The probation period shall include mandatory counselling, community service, and parental support obligations
The Appellant shall cater for the minor’s upkeep and education, without fail, until the child attains the age of majority.
The Appellant shall maintain good conduct and not engage in any criminal activities for the period of the suspended sentence.
The Appellant shall be under the supervision the Probation Officer, Nyamira County Probation Office for the period of the suspended sentence.
In default of any of the above conditions, the suspended sentence shall be lifted and the Appellant shall immediately be arrested and sent to complete the remainder of his sentence in custody.
It is so ordered.
'