https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1304

Juma v Republic (Criminal Appeal E034 of 2024) [2026] KECA 1304 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1304 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Criminal Appeal E034 of 2024 AK Murgor, KI Laibuta & JM Ngugi, JJA July 10, 2026 Between Ali Doyo Juma Appellant and Republic Respondent (Being an Appeal from the Judgment of the High Court of Kenya at Garsen (Githinji, J.) dated 27th May, 2024 in HCCRA No. E011 of 202) Judgment 1.This is a second appeal arising from the conviction and sentence of the appellant, Ali Doyo Juma alias Ali J., for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. The appellant was tried before the Senior Resident Magistrate’s Court at Hola (Hon. Kabanga, SRM) and, in a judgment delivered on 22nd May, 2023 was convicted and sentenced to life imprisonment. His appeal to the High Court at Garsen was dismissed by Githinji, J. in a judgment delivered on 27th May, 2024. Dissatisfied with that outcome, the appellant now comes before this Court on a second appeal challenging both conviction and sentence. 2.The prosecution case before the trial court was that, on 20th and 21st June, 2022 at Lenda village in Tana River County, the appellant unlawfully and intentionally caused his penis to penetrate the vagina of M.K.A., a child aged 11 years. In the alternative, he faced a charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. 3.The appellant pleaded not guilty. The prosecution called five witnesses to prove its case while the appellant gave sworn testimony and called one witness in his defence. 4.The prosecution’s evidence was briefly as follows. The complainant, M.K.A. (PW1), testified that, on the evening of 20th June, 2022, while in the company of another girl named Z , they met the appellant, whom she knew as a neighbour called “Ali J.” The appellant persuaded the two girls to go to his house. Once there, he instructed them to lie on his bed naked. The appellant then removed his clothes and used his penis to penetrate the complainant’s genital organ. After the act, he gave them Ksh. 20 and asked them to return the following day. The complainant testified that the appellant repeated the act on the following day. 5.Shortly thereafter, the complainant attended school where her teacher noticed that she was walking with difficulty. Upon inquiry, the complainant disclosed the incident and was taken to hospital. 6.PW4, a medical officer, examined the complainant and noted that her hymen was broken, and that there was whitish discharge and signs of infection. The medical officer concluded that the complainant had been defiled. 7.The prosecution also called witnesses who testified regarding the report of the offence and the subsequent investigation. Importantly, the complainant’s birth certificate was produced and admitted in evidence as Prosecution Exhibit 4. This evidence established that the complainant was born on 27th March, 2011 and was, therefore, 11 years old at the time of the offence. 8.In his defence, the appellant denied committing the offence and suggested that the case had been fabricated due to a dispute involving land boundaries with the complainant’s family. The trial court rejected that defence as unsupported and found the prosecution evidence credible. The trial court, thus, found that the prosecution had proved the charge beyond reasonable doubt and convicted the appellant before imposing the statutory sentence of life imprisonment. 9.The appellant appealed to the High Court challenging both conviction and sentence. In a detailed judgment, the learned Judge of the High Court re-evaluated the evidence as required of a first appellate court and concluded that the trial court had properly analyzed the evidence and reached the correct conclusion. The High Court was satisfied that the prosecution had proved the age of the complainant, penetration, and the identity of the perpetrator beyond reasonable doubt and, therefore, dismissed the appeal. 10.In this Court, the appellant filed supplementary grounds of appeal and written submissions. His principal complaint concerns the age of the complainant and the sentence imposed upon him. The appellant contends that the charge sheet was defective because the birth certificate produced during trial, he claims, showed that the complainant was born on 27th March, 2010 and was, therefore, approximately twelve years old at the time of the alleged offence in June, 2022. According to the appellant, the offence should, therefore, have been charged under section 8(3) of the Sexual Offences Act rather than section 8(2). The appellant further contends that the life sentence imposed upon him is unconstitutional because it deprives courts of discretion in sentencing. 11.The respondent opposed the appeal through written submissions filed on behalf of the Director of Public Prosecutions. The respondent argues that the appeal raises no point of law that would justify interference with the concurrent findings of the two courts below. It is submitted that the prosecution proved all the essential elements of the offence of defilement, namely the age of the complainant; penetration; and the identity of the perpetrator. The respondent further submits that the sentence imposed was lawful because section 8(2) of the Sexual Offences Act prescribes a mandatory sentence of life imprisonment for defilement of a child aged eleven years or below. 12.This appeal came up for hearing before us on 23rd February, 2026. The appellant appeared in person from Manyani Maximum Prison through video link and informed the Court that he had filed written submissions and had nothing further to add. The respondent was represented by Ms. Mutua, learned Assistant Director of Public Prosecutions, who indicated that the respondent would rely entirely on the written submissions filed by Ms. Susan Lewa, Principal Prosecution Counsel. 13.This being a second appeal, our jurisdiction is circumscribed by section 361 of the Criminal Procedure Code, which limits the Court to matters of law only. The principle governing second appeals has long been settled. In Karingo v Republic [1982] KLR 213, this Court stated:“A second appeal must be confined to points of law and this Court will not normally interfere with concurrent findings of fact unless they are shown to be based on no evidence, or on a misapprehension of the evidence, or the courts below are shown demonstrably to have acted on wrong principles in reaching the findings.” 14.The rationale for that limitation is institutional. The trial court has the advantage of seeing and hearing the witnesses. The High Court, as the first appellate court, is required to subject the entire evidence to fresh scrutiny and draw its own conclusions. By the time a matter reaches this Court on second appeal, the factual matrix of the case will ordinarily have crystallized through those two layers of adjudication. Our task is, therefore, limited to determining whether any legal error infected the decisions of the courts below. 15.The jurisprudence on the offence of defilement is also well settled. For the prosecution to sustain a conviction for defilement, it must prove three essential elements beyond reasonable doubt: first, the age of the complainant; second, proof of penetration; and third, the identity of the perpetrator. These three elements form the doctrinal backbone of defilement jurisprudence and have been consistently affirmed by the courts. 16.In the present case, the appellant’s principal complaint concerns the first of those elements — the age of the complainant. The argument advanced by the appellant is that the birth certificate produced in evidence showed that the complainant was born on 27th March, 2010. The offence was alleged to have occurred on 20th and 21st June, 2022. According to the appellant, this would place the complainant within the age bracket contemplated under section 8(3) of the Sexual Offences Act rather than section 8(2). 17.That argument does not withstand scrutiny. The birth certificate produced during trial and admitted as Prosecution Exhibit 4 clearly states that the complainant’s date of birth is 27th March, 2011, not 2010. The document itself is explicit and leaves no room for ambiguity. 18.The appellant’s submission that the birth certificate reflects the year 2010 is, therefore, plainly inconsistent with the record. The claim finds no support whatsoever in the documentary evidence before the Court and appears to be an attempt to mislead the Court by attributing to the birth certificate a date that it does not contain. 19.Once the correct date of birth — 27th March, 2011 — is considered, the matter becomes straightforward. The offence occurred in 2022. At that time, the complainant was eleven years old and, therefore, squarely within the statutory category contemplated under section 8(2) of the Sexual Offences Act. 20.We therefore find no legal basis upon which the conviction could be disturbed on account of the argument relating to the complainant’s age. 21.Having disposed of the appellant’s challenge on age, we note that the other essential elements of the offence were the subject of concurrent findings by the two courts below. Both the trial court and the High Court were satisfied that penetration was proved through the complainant’s testimony, corroborated by the medical evidence on record. They were equally satisfied that the appellant was properly identified as the perpetrator through recognition evidence, the complainant having known him prior to the incident. Those findings were grounded in the evaluation of the oral and documentary evidence before the trial court. As this is a second appeal, this Court does not interfere with concurrent findings of fact unless they are shown to be based on no evidence, or on a misapprehension of the evidence, or unless the courts below are demonstrated to have acted on wrong principles. No such error has been shown here. We, therefore, see no basis to disturb those findings. 22.We now turn to the appellant’s challenge to the life sentence imposed upon him. The appellant argues that the mandatory life sentence prescribed under section 8(2) of the Sexual Offences Act is unconstitutional because it deprives courts of sentencing discretion. 23.That argument cannot succeed in light of the jurisprudence that has developed following the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR (Muruatetu 1) and the subsequent clarification made by the Supreme Court in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] KESC 31 (KLR) (Muruatetu 2). In Muruatetu 2, the Supreme Court made it clear that the decision in Muruatetu 2 was limited to the mandatory death sentence for murder under section 204 of the Penal Code and did not invalidate mandatory or minimum sentences prescribed under other statutes. 24.The question was addressed even more directly by the Supreme Court in Republic v Joshua Gichuki Mwangi (Petition E018 of 2023) [2024] KESC 34 (KLR) (delivered on 12th July, 2024), where the Court categorically held that the minimum sentences in the Sexual Offences Act are constitutional and binding. 25.The apex Court held thus:“ 56.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. 57.In the Muruatetu case, this court solely considered the mandatory sentence of death under Section 204 of the Penal Code as it is applied to murder cases; it did not address minimum sentences at all. Therefore, mandatory sentences that apply for example to capital offences, are vastly different from minimum sentences such as those found in the Sexual Offences Act, and the Penal Code. Often in crafting different sentencing for criminal offences, the drafters of the law in the Legislature, take into consideration a number of issues including deterrence of crime, enhancing public safety, sequestering of dangerous offenders, and eliminating unjustifiable sentencing disparities.” 26.The legal consequence of that pronouncement is straightforward. The sentencing framework established under the Sexual Offences Act remains valid and binding. Courts are required to apply the statutory minimum sentences prescribed under the Act unless Parliament amends the law. 27.In the present case, the appellant was convicted of defilement of a child aged eleven years or below. Section 8(2) of the Sexual Offences Act prescribes a sentence of life imprisonment for such an offence. Once the offence was proved, the trial court was bound by law to impose that sentence. 28.Having carefully reviewed the entire record of appeal, the rival submissions of the parties, and the applicable law, we are satisfied that the trial court properly evaluated the evidence and reached the correct conclusion. The High Court, exercising its duty as a first appellate court, re-evaluated the evidence and correctly affirmed the conviction and sentence. 29.In the result, this appeal fails in its entirety and is hereby dismissed. 30.Orders accordingly. DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF JULY, 2026.A. K. MURGOR........................JUDGE OF APPEALDR. K. I. LAIBUTA, CArb, FCIArb.........................JUDGE OF APPEALJOEL NGUGI........................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR