(Being an appeal from the sentence of Hon. Alex Ithuku (CM) in Kerugoya Magistrates Court S.O. Case No. E012 of 2012 delivered on 15/11/2023)
Background
1. This appeal is by the State against the sentence imposed upon the respondent by the trial court.
2. The respondent, Harrison Mwangi Wanjohi was convicted on the principal charge for the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The particulars were that on diverse dates between the months of January 2022 and March 2022 at Kabumbu village within Kirinyaga County intentionally and unlawfully caused his penis to penetrate the vagina of J.N.M. a child aged 16 years.
3. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. Particulars being that on the same dates and at the same place as in the principal charge, he intentionally and unlawfully caused his penis to come into contact with the vagina of J.N.M. a child aged 16 years.
4. The respondent denied both charges. After a full trial, he was convicted of the principal charge of defilement. The trial court found the girl to be 17 years old at the time of the offence. He was sentenced to serve 5 years imprisonment.
Grounds of appeal
5. Dissatisfied with the sentence, the appellant has appealed to this court on the following grounds in the memorandum of appeal dated 27/11/2023:
a. The learned trial magistrate erred in fact and law in law by passing a sentence upon the respondent that did not take into account all the relevant factors of the offence.
b. The learned trial magistrate erred in fact and law in law by by passing a sentence upon the respondent that was not proportionate to the seriousness of the offence.
c. The learned trial magistrate erred in fact and law in law by by passing a sentence upon the respondent that was too lenient in the circumstances.
6. The appellant therefore prays that the appeal be allowed, the sentence be quashed and set aside and the same be substituted with a sentence of not less than twenty years imprisonment.
Submissions
7. The appeal was canvassed through written submissions filed by the appellant’s counsel and the respondent in person.
8. Learned counsel for the appellant has proposed two issues for determination, these are: whether the sentence by the trial court was anchored in law and whether the sentence was sufficient in the circumstances.
9. Section 8(1) and 8(4) of the Sexual Offences Act under which the appellant was charged, convicted and sentenced provides as follows:
S.8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
…
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
10. It is correct as submitted by the learned prosecution counsel that this section of the law provides for a minimum sentence of 15 years imprisonment. Learned counsel has submitted on various aggravating factors and citing the case of Ngimusug & 2 others v Republic [2024] KEHC 3691 (KLR) where the case of Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) [2021] KESC 31 (KLR) was cited and in which the following guidelines were given on the factors the court should consider while sentencing. However, the Supreme Court has since clarified that the case of Muruatetu I applies only in murder cases in the High Court.
11. Learned counsel has also cited the Judiciary Sentencing Policy Guidelines 2023 pointing out various factors that the court may cause the court to consider a reduced or enhanced sentence. He urges this court to enhance the sentence to be not less than twenty years imprisonment, that is, beyond the minimum sentence.
12. Learned counsel submits that though the respondent was a first offender, his actions were motivated by the age and disability of the victim who was a child with a mental disability and her vulnerability made her a target of the respondent who defiled her severally for months through planned actions. That he bought her drugs and even tested her for pregnancy. But the complainant later conceived and this curtailed the victim’s studies. Learned counsel terms the actions of the respondent as inhumane and deliberate and therefore the sentence of five years imprisonment as too lenient.
13. The respondent on his part submits that the learned trial magistrate acted within the law and the facts when sentencing the respondent. That he weighed the seriousness of the offence against the weight of the respondent’s mitigating factors, remorsefulness, defence and the victim’s age which was found to be 17 years at the time of the commission of the offence. He submits that the learned trial magistrate considered that the victim behaved like an adult towards the respondent and that there were multiple sexual encounters between the two of them. That the trial court also noted that mental retardation of the complainant was not proved through a psychiatric report. The respondent submits that the learned trial magistrate acted within his discretion while passing the sentence.
Duty of this court
14. This being a first appeal, this court has a duty to examine, re-evaluate and reconsider the evidence on record afresh and come to its own independent conclusions and inferences bearing in mind that it did not see or hear the witnesses testify first-hand as held in the case of Okeno v Republic (1972) EA 32.
Analysis
15. I have examined and re-evaluated the evidence tendered before the trial court, the judgment of the trial court, the grounds of appeal and the submissions by the parties. The point for determination is whether or not the trial court erred when it passed a sentence of 5 years imprisonment upon the respondent instead of the minimum 15 years imprisonment.
16. It is the appellant’s contention that the sentence imposed upon the respondent by the trial court was below the minimum sentence provided for by law and insufficient in the circumstances of this case.
17. In the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) the Supreme Court explained that:-
“Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence. In fact, to use the words mandatory and minimum together convolutes the express different definitions given to each of the two words. Although, the term ‘mandatory minimum’ can be found used in different jurisdictions, including the United States, and in a number of academic articles, it is not applicable as a legally recognised term in Kenya. In this country, a mandatory sentence and minimum sentence can neither be used interchangeably nor in similar circumstances as they refer to two very different set of meanings and circumstances.
18. Before the Supreme Court rendered the above decision, the Court of Appeal and the High Court had made interpretations of the Sexual Offences Act in several decisions finding that the mandatory minimum nature of the sentences therein which took away the court’s discretion in sentencing were unconstitutional. The said superior courts thus routinely reviewed minimum sentences passed by lower courts to lower sentences. The Lower courts being bound by the superior courts’ decisions also applied stare decisis and passed sentences lower than the minimum provided for by law. That is what happened in the present case.
19. Indeed the Court of Appeal referring to that situation recently stated in the case of Nyarigoti v Republic (Criminal Appeal 271 of 2019)[2025] KECA156(KLR)(7th February 2025) as follows;
“Turning to the second ground urged by the appellant, it is true that until recently our courts were developing a jurisprudential trajectory which impugned the constitutionality of the minimum sentences in the Sexual Offences Act on separation of powers grounds. However, that jurisprudential trajectory was snuffed out by a recent binding decision of the Supreme Court in Republic vs. Joshua Gichuki Mwangi (Petition E018 of 2023) [2024] KESC 34 (KLR) (delivered on 12th July, 2024). In that case, the Supreme Court categorically held that the mandatory minimum sentences in the Sexual Offences Act are not unconstitutional; and that trial courts have no discretion to go below the statutory minimum sentences in sexual offences.”
20. In the present case, the jurisprudence from the Court of Appeal and the High Court had changed the prescribed law on minimum sentences to provide that courts had discretion to pass appropriate sentences other than the minimum provided for under the law. It cannot be gainsaid that there are many convicts who benefitted from that jurisprudential approach and served lesser terms of prison custody and were released. For those who are still in custody, it is not in all cases that the DPP us going to appeal the decisions for enhancement of sentence as in the present case.
21. The Supreme Court decision in the Republic v Mwangi case above was made on 12/7/2024 after the trial court had passed the sentence upon the respondent on 15/11/2023. No doubt, the trial court was relying on the jurisprudence developed by the Court of Appeal and the High Court and what was obtaining at the time. Learned counsel for the appellant did nt address this court on that issue.
22. In view of the foregoing, it is difficult for me to find that the learned trial magistrate was wrong in his application of the law at the time. Under the right to a fair hearing in Article 50(2)(p) of the Constitution, an accused person has a right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing. I do not find it to be fair therefore to enhance the sentence of the respondent where the learned trial court cannot be said to have been in error.
23. For the said reason, I find that this appeal has no merit and the same is dismissed. The respondent will serve the sentence as passed by the trial court.
24. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 11th day of August 2025 in the presence of:
Komu (Ms) for the appellant.
The respondent in person from Nyeri Maximum prison.
Job: Court assistant.
ANDAYI W. FRANCIS
JUDGE
Background
1. This appeal is by the State against the sentence imposed upon the respondent by the trial court.
2. The respondent, Harrison Mwangi Wanjohi was convicted on the principal charge for the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The particulars were that on diverse dates between the months of January 2022 and March 2022 at Kabumbu village within Kirinyaga County intentionally and unlawfully caused his penis to penetrate the vagina of J.N.M. a child aged 16 years.
3. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. Particulars being that on the same dates and at the same place as in the principal charge, he intentionally and unlawfully caused his penis to come into contact with the vagina of J.N.M. a child aged 16 years.
4. The respondent denied both charges. After a full trial, he was convicted of the principal charge of defilement. The trial court found the girl to be 17 years old at the time of the offence. He was sentenced to serve 5 years imprisonment.
Grounds of appeal
5. Dissatisfied with the sentence, the appellant has appealed to this court on the following grounds in the memorandum of appeal dated 27/11/2023:
a. The learned trial magistrate erred in fact and law in law by passing a sentence upon the respondent that did not take into account all the relevant factors of the offence.
b. The learned trial magistrate erred in fact and law in law by by passing a sentence upon the respondent that was not proportionate to the seriousness of the offence.
c. The learned trial magistrate erred in fact and law in law by by passing a sentence upon the respondent that was too lenient in the circumstances.
6. The appellant therefore prays that the appeal be allowed, the sentence be quashed and set aside and the same be substituted with a sentence of not less than twenty years imprisonment.
Submissions
7. The appeal was canvassed through written submissions filed by the appellant’s counsel and the respondent in person.
8. Learned counsel for the appellant has proposed two issues for determination, these are: whether the sentence by the trial court was anchored in law and whether the sentence was sufficient in the circumstances.
9. Section 8(1) and 8(4) of the Sexual Offences Act under which the appellant was charged, convicted and sentenced provides as follows:
S.8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
…
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
10. It is correct as submitted by the learned prosecution counsel that this section of the law provides for a minimum sentence of 15 years imprisonment. Learned counsel has submitted on various aggravating factors and citing the case of Ngimusug & 2 others v Republic [2024] KEHC 3691 (KLR) where the case of Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) [2021] KESC 31 (KLR) was cited and in which the following guidelines were given on the factors the court should consider while sentencing. However, the Supreme Court has since clarified that the case of Muruatetu I applies only in murder cases in the High Court.
11. Learned counsel has also cited the Judiciary Sentencing Policy Guidelines 2023 pointing out various factors that the court may cause the court to consider a reduced or enhanced sentence. He urges this court to enhance the sentence to be not less than twenty years imprisonment, that is, beyond the minimum sentence.
12. Learned counsel submits that though the respondent was a first offender, his actions were motivated by the age and disability of the victim who was a child with a mental disability and her vulnerability made her a target of the respondent who defiled her severally for months through planned actions. That he bought her drugs and even tested her for pregnancy. But the complainant later conceived and this curtailed the victim’s studies. Learned counsel terms the actions of the respondent as inhumane and deliberate and therefore the sentence of five years imprisonment as too lenient.
13. The respondent on his part submits that the learned trial magistrate acted within the law and the facts when sentencing the respondent. That he weighed the seriousness of the offence against the weight of the respondent’s mitigating factors, remorsefulness, defence and the victim’s age which was found to be 17 years at the time of the commission of the offence. He submits that the learned trial magistrate considered that the victim behaved like an adult towards the respondent and that there were multiple sexual encounters between the two of them. That the trial court also noted that mental retardation of the complainant was not proved through a psychiatric report. The respondent submits that the learned trial magistrate acted within his discretion while passing the sentence.
Duty of this court
14. This being a first appeal, this court has a duty to examine, re-evaluate and reconsider the evidence on record afresh and come to its own independent conclusions and inferences bearing in mind that it did not see or hear the witnesses testify first-hand as held in the case of Okeno v Republic (1972) EA 32.
Analysis
15. I have examined and re-evaluated the evidence tendered before the trial court, the judgment of the trial court, the grounds of appeal and the submissions by the parties. The point for determination is whether or not the trial court erred when it passed a sentence of 5 years imprisonment upon the respondent instead of the minimum 15 years imprisonment.
16. It is the appellant’s contention that the sentence imposed upon the respondent by the trial court was below the minimum sentence provided for by law and insufficient in the circumstances of this case.
17. In the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) the Supreme Court explained that:-
“Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence. In fact, to use the words mandatory and minimum together convolutes the express different definitions given to each of the two words. Although, the term ‘mandatory minimum’ can be found used in different jurisdictions, including the United States, and in a number of academic articles, it is not applicable as a legally recognised term in Kenya. In this country, a mandatory sentence and minimum sentence can neither be used interchangeably nor in similar circumstances as they refer to two very different set of meanings and circumstances.
18. Before the Supreme Court rendered the above decision, the Court of Appeal and the High Court had made interpretations of the Sexual Offences Act in several decisions finding that the mandatory minimum nature of the sentences therein which took away the court’s discretion in sentencing were unconstitutional. The said superior courts thus routinely reviewed minimum sentences passed by lower courts to lower sentences. The Lower courts being bound by the superior courts’ decisions also applied stare decisis and passed sentences lower than the minimum provided for by law. That is what happened in the present case.
19. Indeed the Court of Appeal referring to that situation recently stated in the case of Nyarigoti v Republic (Criminal Appeal 271 of 2019)[2025] KECA156(KLR)(7th February 2025) as follows;
“Turning to the second ground urged by the appellant, it is true that until recently our courts were developing a jurisprudential trajectory which impugned the constitutionality of the minimum sentences in the Sexual Offences Act on separation of powers grounds. However, that jurisprudential trajectory was snuffed out by a recent binding decision of the Supreme Court in Republic vs. Joshua Gichuki Mwangi (Petition E018 of 2023) [2024] KESC 34 (KLR) (delivered on 12th July, 2024). In that case, the Supreme Court categorically held that the mandatory minimum sentences in the Sexual Offences Act are not unconstitutional; and that trial courts have no discretion to go below the statutory minimum sentences in sexual offences.”
20. In the present case, the jurisprudence from the Court of Appeal and the High Court had changed the prescribed law on minimum sentences to provide that courts had discretion to pass appropriate sentences other than the minimum provided for under the law. It cannot be gainsaid that there are many convicts who benefitted from that jurisprudential approach and served lesser terms of prison custody and were released. For those who are still in custody, it is not in all cases that the DPP us going to appeal the decisions for enhancement of sentence as in the present case.
21. The Supreme Court decision in the Republic v Mwangi case above was made on 12/7/2024 after the trial court had passed the sentence upon the respondent on 15/11/2023. No doubt, the trial court was relying on the jurisprudence developed by the Court of Appeal and the High Court and what was obtaining at the time. Learned counsel for the appellant did nt address this court on that issue.
22. In view of the foregoing, it is difficult for me to find that the learned trial magistrate was wrong in his application of the law at the time. Under the right to a fair hearing in Article 50(2)(p) of the Constitution, an accused person has a right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing. I do not find it to be fair therefore to enhance the sentence of the respondent where the learned trial court cannot be said to have been in error.
23. For the said reason, I find that this appeal has no merit and the same is dismissed. The respondent will serve the sentence as passed by the trial court.
24. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 11th day of August 2025 in the presence of:
Komu (Ms) for the appellant.
The respondent in person from Nyeri Maximum prison.
Job: Court assistant.
ANDAYI W. FRANCIS
JUDGE