( An appeal from the sentence in Migori Magistrate’s Court Case No. E028 of 2023 delivered on 27/05/2024 by Hon. N. Wairimu – Senior Principal Magistrate between Republic versus Tom Mgango Mgaiza alias Baba Night )
JUDGMENT
1. The appellant was charged with the offence of attempted defilement contrary to Section 9(1) (2) of the Sexual Offences Act No. 3 of 2006 . The particulars of the offence are that on the 10 th day of May, 2023 at around 1800hrs at Osogo village, West Kanyamkago Location, Uriri sub county in Migori County within the Republic of Kenya, he unlawfully attempted to defile V.A.O a child aged 10 years.
2. The appellant faced an alternative charge of committing an indecent act with a minor contrary to Section 11(1) of the Sexual Offences Act . The particulars of the offence are that on the 10 th day of May, 2023 at around 1800hrs at Osogo village, West Kanyamkago Location, Uriri sub county in Migori County within the Republic of Kenya, he unlawfully and intentionally touched with his hands the vagina of V.A.O a girl aged 10 years.
3. The Appellant pleaded not guilty to the charges, and the case proceeded to trial. In a judgment delivered on 17 th April, 2024 the Appellant was convicted on the main charge of attempted defilement and sentenced to ten (10) years’ imprisonment.
4. That an order of pre-sentence report was made and the same was availed before the trial court and upon the trial court perusing the said pre-sentence report received in court on the 24 th of May, 2024 sentenced the Appellant and the Appellant being dissatisfied with the sentence, he appealed to this court vide an undated petition of appeal in which he raised the following grounds of appeal;
1) That I did not plead guilty to the charge herein.
2) That the sentence meted although lawful was manifestly harsh and excessive in the circumstances.
3) That the trial court erred in both law and facts by refusing to consider my defence and mitigation .
5. In his submissions, the appellant submitted that he was not challenging the conviction but rather requesting the court to consider revising the sentence on humanitarian grounds. He further submitted that he was an old man and his defence and mitigation pointed to the picture on the ground and that he is remorseful, regretful and has totally rehabilitated and prays for this Court to reduce the sentence to the period already served in custody on humanitarian grounds.
6. The Respondent equally filed their submissions in which they contended that the Appeal lacked merit and the court should dismiss it for reason that they proved their case beyond reasonable doubt and all the elements of the offence herein was proved to the required standard. On the issue of defence, they submitted that the Appellants defence was merely an afterthought. The Respondent’s conclusion was that the appeal against the judgment of the court lacked merit and the same should be dismissed in its entirety and that the sentence was reasonable in the circumstances.
7. As a first appellate court, I must reconsider and evaluate the evidence in the court below to arrive at an independent conclusion while bearing in mind that I did not hear or see the witness. In Kiilu & Another V Republic, [2005] 1 KLR 174 , the Court of Appeal set out the duties of a first appellate court as follows:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” (see also Okeno vs Republic (1972) EA 32 )
8. Guided by the foregoing principles, I have carefully considered the grounds of appeal, the record of the trial court, re-evaluated the evidence tendered before the trial court, and the written submissions filed by both the Appellant and the Respondent. I have also considered the judgment of the trial court in its entirety. It is evident from the grounds of appeal and submissions tendered that the Appellant does not challenge either his conviction or the sufficiency of the evidence upon which it was founded. The appeal is therefore limited to the sentence imposed by the trial court.
9. Consequently, the only issue for determination is whether this Court ought to interfere with the sentence on the grounds that it was unlawful, harsh, excessive, or otherwise founded on wrong principles.
10. Sentencing is an important task that is not undertaken lightly by the court. In the present case, I note that the trial court after the conviction for the Appellant, ordered for a pre-sentence report before sentencing the Appellant. One of the prime objectives of the criminal law is imposition of an appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of the crime and the manner in which the crime is done. There is no straightjacket formula for sentencing an accused on proof of crime. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep the gravity of the crime, motive for the crime, nature of the of the offence and all other attendant circumstances.
11. The principle governing imposition of punishment would depend upon the facts and circumstances of each case. An offence which affects the morale of the society should be severely dealt with. Also, while exercising its discretion in sentencing, the court should bear in mind the principles of proportionality, deterrence and rehabilitation and as part of the proportionality analysis, mitigating and aggravating factors should also be considered.
12. This Court notes that this is a case where the statute provides a mandatory minimum sentence of ten years’ imprisonment as prescribed by the Sexual Offences Act. The decision in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [ 2024] KESC 34 (KLR ) is relevant in this case.
13. I have carefully considered the mitigation advanced before this Court and the one tendered before the trial court. While this Court is not insensitive to the Appellant's personal circumstances as per the submissions filed on Appeal, the same does not constitute a sufficient basis for interfering with the sentence imposed by the trial court.
14. It is my considered view that there is nothing on the trial file record to demonstrate that the learned trial magistrate acted on a wrong principle or failed to consider any relevant factor or took into account an irrelevant consideration in arriving at the sentence.
15. The sentence of ten (10) years' imprisonment is lawful and, having regard to the nature and gravity of the offence of attempted defilement, it cannot be said to be manifestly harsh or excessive. This court therefore has no authority to impose a lesser sentence.
16. In the circumstances therefore, the appeal herein on both the conviction and sentence is dismissed .
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 6 th of August 2026.
HCCRA NO. E090 OF 2025 TOM MGANGO MGAIZA VS REPUBLIC JUDGMENT Pg. 4
JUDGMENT
1. The appellant was charged with the offence of attempted defilement contrary to Section 9(1) (2) of the Sexual Offences Act No. 3 of 2006 . The particulars of the offence are that on the 10 th day of May, 2023 at around 1800hrs at Osogo village, West Kanyamkago Location, Uriri sub county in Migori County within the Republic of Kenya, he unlawfully attempted to defile V.A.O a child aged 10 years.
2. The appellant faced an alternative charge of committing an indecent act with a minor contrary to Section 11(1) of the Sexual Offences Act . The particulars of the offence are that on the 10 th day of May, 2023 at around 1800hrs at Osogo village, West Kanyamkago Location, Uriri sub county in Migori County within the Republic of Kenya, he unlawfully and intentionally touched with his hands the vagina of V.A.O a girl aged 10 years.
3. The Appellant pleaded not guilty to the charges, and the case proceeded to trial. In a judgment delivered on 17 th April, 2024 the Appellant was convicted on the main charge of attempted defilement and sentenced to ten (10) years’ imprisonment.
4. That an order of pre-sentence report was made and the same was availed before the trial court and upon the trial court perusing the said pre-sentence report received in court on the 24 th of May, 2024 sentenced the Appellant and the Appellant being dissatisfied with the sentence, he appealed to this court vide an undated petition of appeal in which he raised the following grounds of appeal;
1) That I did not plead guilty to the charge herein.
2) That the sentence meted although lawful was manifestly harsh and excessive in the circumstances.
3) That the trial court erred in both law and facts by refusing to consider my defence and mitigation .
5. In his submissions, the appellant submitted that he was not challenging the conviction but rather requesting the court to consider revising the sentence on humanitarian grounds. He further submitted that he was an old man and his defence and mitigation pointed to the picture on the ground and that he is remorseful, regretful and has totally rehabilitated and prays for this Court to reduce the sentence to the period already served in custody on humanitarian grounds.
6. The Respondent equally filed their submissions in which they contended that the Appeal lacked merit and the court should dismiss it for reason that they proved their case beyond reasonable doubt and all the elements of the offence herein was proved to the required standard. On the issue of defence, they submitted that the Appellants defence was merely an afterthought. The Respondent’s conclusion was that the appeal against the judgment of the court lacked merit and the same should be dismissed in its entirety and that the sentence was reasonable in the circumstances.
7. As a first appellate court, I must reconsider and evaluate the evidence in the court below to arrive at an independent conclusion while bearing in mind that I did not hear or see the witness. In Kiilu & Another V Republic, [2005] 1 KLR 174 , the Court of Appeal set out the duties of a first appellate court as follows:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” (see also Okeno vs Republic (1972) EA 32 )
8. Guided by the foregoing principles, I have carefully considered the grounds of appeal, the record of the trial court, re-evaluated the evidence tendered before the trial court, and the written submissions filed by both the Appellant and the Respondent. I have also considered the judgment of the trial court in its entirety. It is evident from the grounds of appeal and submissions tendered that the Appellant does not challenge either his conviction or the sufficiency of the evidence upon which it was founded. The appeal is therefore limited to the sentence imposed by the trial court.
9. Consequently, the only issue for determination is whether this Court ought to interfere with the sentence on the grounds that it was unlawful, harsh, excessive, or otherwise founded on wrong principles.
10. Sentencing is an important task that is not undertaken lightly by the court. In the present case, I note that the trial court after the conviction for the Appellant, ordered for a pre-sentence report before sentencing the Appellant. One of the prime objectives of the criminal law is imposition of an appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of the crime and the manner in which the crime is done. There is no straightjacket formula for sentencing an accused on proof of crime. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep the gravity of the crime, motive for the crime, nature of the of the offence and all other attendant circumstances.
11. The principle governing imposition of punishment would depend upon the facts and circumstances of each case. An offence which affects the morale of the society should be severely dealt with. Also, while exercising its discretion in sentencing, the court should bear in mind the principles of proportionality, deterrence and rehabilitation and as part of the proportionality analysis, mitigating and aggravating factors should also be considered.
12. This Court notes that this is a case where the statute provides a mandatory minimum sentence of ten years’ imprisonment as prescribed by the Sexual Offences Act. The decision in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [ 2024] KESC 34 (KLR ) is relevant in this case.
13. I have carefully considered the mitigation advanced before this Court and the one tendered before the trial court. While this Court is not insensitive to the Appellant's personal circumstances as per the submissions filed on Appeal, the same does not constitute a sufficient basis for interfering with the sentence imposed by the trial court.
14. It is my considered view that there is nothing on the trial file record to demonstrate that the learned trial magistrate acted on a wrong principle or failed to consider any relevant factor or took into account an irrelevant consideration in arriving at the sentence.
15. The sentence of ten (10) years' imprisonment is lawful and, having regard to the nature and gravity of the offence of attempted defilement, it cannot be said to be manifestly harsh or excessive. This court therefore has no authority to impose a lesser sentence.
16. In the circumstances therefore, the appeal herein on both the conviction and sentence is dismissed .
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 6 th of August 2026.
HCCRA NO. E090 OF 2025 TOM MGANGO MGAIZA VS REPUBLIC JUDGMENT Pg. 4