https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1438

Samuel v Republic (Criminal Appeal E032 of 2024) [2026] KECA 1438 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1438 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E032 of 2024 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between Boaz Nyanoti Samuel Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Nyamira ( J.N. Njagi J.) dated 30th March 2022 in HCCRA No. E015 of 2020) Judgment 1.This is an appeal from the judgment of the High Court of Kenya at Nyamira (Njagi J) (the first appellate court) dated 30th March 2022 in Criminal Appeal No. E015 of 2020. Boaz Nyanoti Samuel (the appellant) was charged before the Chief Magistrates’ Court at Nyamira (the trial court) with defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act in Sexual Offence Case No. 16 of 2020.Particulars were that on 4th March 2020 at [Particulars Withheld] Market Bosamaro Chache Location in Nyamira South Sub County within Nyamira County, he caused his penis to penetrate the vagina of G.K.M, a child aged 15-years. 2.The appellant faced an alternative count of committing an indecent act with a child, particulars being that on the same date and place he intentionally and unlawfully touched the vagina of G.K.M, with his penis. He denied the charges. 3.The prosecution’s case before the trial court was that PW1 (the complainant), with her friend PW4 had visited PW4’s sister at Mosobeti but later went to Keroka town on 4th March 2020. In the evening, they boarded a motorcycle (boda boda) belonging to the appellant to take them home, but the appellant took them to his house near Keroka town, instead where they spent the night. The appellant forced the complainant to have sexual intercourse with him while Ongiri, who was staying with the appellant in the same house, had sexual intercourse with PW4. The following morning after taking tea, the complainant and PW4 left. On their way home, they were arrested by the Area Chief (PW3) and when questioned why they were not in school, they disclosed that they had spent the night at the appellant’s house. The complainant’s father (PW2) was contacted and he confirmed that the complainant had run away from home. 4.The appellant was arrested and taken to Nyamira police station together with both the complainant and PW4. The complainant was later escorted to hospital for age assessment and medical examination. 5.According to PW2, JM and the complainant’s father, the complainant was born in 2005, was 15 years at the material time and in class 6. On 2nd April 2020, he went to school and reported that the complainant had escaped from home and he was still looking for her. He later received information that she had been found at Mosobeti where he went and found her at the Assistant Chief’s office. The complainant and PW4 disclosed that they spent the night at the appellant’s home. They were taken to the police station. and the appellant was later arrested. 6.PW3, Police Surgent Jeridah Nyatichi of Nyamira Police station and the investigating officer, received information regarding the arrest of the appellant on suspected defilement; he was taken to the station together with the complainant and she escorted them to hospital for medical examination and age assessment and PW5 assessed her age to be 15 years. After interrogation, the complainant stated that the appellant had defiled her. The appellant was then charged with the offences. 7.On her part, PW4 also 15 years old, was with the complaint and they had gone to visit her sister at Mosobeti. In the evening, they took a boda boda to return home but the ridder took them to his house where they found another boy called Ongiri. They spent the night in the appellant’s house where the appellant had sex with the complainant while she had sex with Ongiri. In the morning, they left for home but they were arrested by the area Chief. 8.PW5 Dr. Emily Mutui, produced age assessment report showing that the complainant’s age was assessed to be 15 years while Joel Ongaro, (PW6) who examined the complainant, confirmed that the hymen was broken, she had bruises and lacerations but they were old and there was presence of whitish discharge with a foul smell thus, he concluded that there was penetration. 9.In his defence, the appellant denied defiling the complainant asserting that he was at home on the night and the following day he went for an interview and later received a call directing him to go to the chief’s office where he was arrested. He stated that he did not know both the complainant and PW4. 10.Upon considering the evidence by both the prosecution and the appellant, the trial court found that the prosecution had proved the ingredients of the offence; age, through the evidence of PW2 and the age assessment report; penetration through the evidence of the complainant and PW4 and the identity of the appellant as the perpetrator of the offence through the evidence of the complainant and PW4, beyond reasonable doubt; convicted the appellant on the main count and sentenced him to ten (10) years imprisonment. 11.Dissatisfied, the appellant filed an appeal before the first appellate court against both conviction and sentence, contending that the trial court erred in; convicting him in the absence of evidence linking him to the offence; that he was not properly identified as the perpetrator of the offence. On its part, the prosecution maintained that the case against the appellant was proved beyond reasonable doubt; that the complainant’s age was proved through the age assessment report and that the testimony of PW2; that penetration was proved by medical evidence which was corroborated by the evidence of PW4 and that both the complainant and PW4 identified the appellant as the perpetrator of the offence, having spent sufficient time with him on the material night. The prosecution further argued that the sentence of ten (10) years’ imprisonment was illegal since section 8(3) of the Sexual Offences Act prescribes a minimum sentence of twenty (20) years, and urged the first appellate Court to substitute the sentence of ten (10) years with the legal sentence of 20 years provided for in law. 12.In its judgment dated and delivered on 30th March 2022, the first appellate court was satisfied that the prosecution proved the essential elements of the offence beyond reasonable doubt that the age of the complainant was proved to be 15 through the age assessment report which was corroborated by the evidence of PW2; that penetration was proved through the evidence of the complainant and that of PW4 and that the complainant and PW4 identified the appellant as the perpetrator of the offence. The first appellate court dismissed the appeal and upheld the conviction. The first appellate court, however, held that the sentence of ten (10) years imposed by the trial court was illegal, set it aside and substituted it with a sentence of twenty (20) years imprisonment. 13.The appellant was again aggrieved and filed this second appeal, contending that the first appellate court erred in; upholding his conviction when the elements of the offence were not proved beyond reasonable doubt and that the first appellate court erred in law in enhancing the sentence from 10 years to 20 years’ imprisonment which was excessive; harsh and unjust in light of the emerging jurisprudence that mandatory minimum sentences are unconstitutional. He urged that his appeal be allowed, the conviction be quashed and the sentence set aside. 14.At plenary hearing, the appellant who represented himself appeared through our video link from prison while Ms. Mumu, learned counsel, held brief for Mr. Mwangi, for the respondent. Both the appellant and Ms. Mumu relied on their written submissions entirely in arguing the petition. 15.The gist of the appellant’s submissions was that the first appellate court erred in upholding his conviction yet the prosecution had not proved the ingredients of the offence beyond reasonable doubt and that the first appellate court wrongly enhanced the sentence without a cross appeal and warning him of the possibility of enhancing the sentence, thereby violated his right to a fair hearing. The appellant relied on J.J.W. v Republic [2013] eKLR; Sammy Omboke & Another v Republic [2019] eKLR, and Joseph Muerithi Kanyita v Republic [2017] eKLR, to support his submissions that an appellant ought to be warned where sentence is likely to be enhanced, either through a cross- appeal or by the court itself. 16.The appellant further argued that the enhanced sentence was against the emerging jurisprudence that mandatory minimum sentences are unconstitutional, and relied on the Supreme Court in Francis Karioko Muruatetu & Another v Republic [2017] eKLR. The appellant urged this Court to allow the appeal, set aside the conviction and or the enhanced sentence of twenty (20) years and substitute it with the sentence of ten (10) years’ imprisonment that was initially imposed by the trial court. 17.In opposition, Mr. Mwangi submitted that a second appeal is confined to matters of law only and that this Court should not interfere with concurrent findings of fact by the two lower courts, unless such findings were based on no evidence, and cited the decisions in Reuben Karari s/o Karanja v R (1956) 17 EACA 146 and Karingo & 2 others v Republic [1982] KLR 213 to support this submission. 18.On the enhancement of the sentence, counsel submitted that an appellate court is entitled to interfere with the sentence where the trial court acted on wrong principles, overlooked relevant factors, or imposed an illegal sentence, and relied on Ogola s/o Owuora v Republic (1954) EACA for that submission. 19.Counsel contended that the sentence of 10 years imposed by the trial court was illegal since section 8(3) of the Sexual Offences Act prescribes a minimum sentence of 20 years for defilement of a child under the age of 16 and that he had filed a notice of the intention to seek enhancement of the sentence. 20.Regarding the merits of the appeal, Mr. Mwangi submitted that the ingredients of the offence of defilement, namely, penetration, age, and the identity of the perpetrator were proved beyond reasonable doubt; that medical evidence is not the sole evidence for proving defilement; that the evidence of the complainant was corroborated by that of PW4 on defilement and that both the complainant and PW4 positively identified the appellant as the perpetrator, having spent considerable time with him on that material night. 21.On mandatory minimum sentences, counsel relied on the decisions in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR), for the submission that mandatory minimum sentences under the Penal Code, Sexual Offences Act or other statutes are lawful except for the offence of murder under section 203 as read with section 204 of the Penal Code. Counsel urged this Court to dismiss the appeal in its entirety. 22.On a second appeal, our duty is limited to considering questions of law only. This Court cannot re-evaluate the evidence, or disturb concurrent findings of fact by the lower courts, unless those factual conclusions are perverse or unsupported by any evidence, or the courts below considered matters they should not have considered, or failed to consider matters they should have considered, or looking at the decision as a whole, it is perverse. (See Karingo & 2 Others v Republic [1982] KLR 213). 23.Section 161(1) of the Criminal Procedure Code, affirms the position that in a second appeal this Court is precluded from hearing matters of fact by providing as follows:“A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section—a.on a matter of fact, and severity of sentence is a matter of fact; orb.against sentence, except where a sentence has been enhanced by the High Court, unless the subordinate court had no power under section 7 to pass that sentence.” 24.We have considered the appeal and respective parties’ submissions and the applicable law. From those submissions, we discern two issues for determination, first; whether the prosecution proved the offence of defilement as required by law and second, whether the first appellate court erred in enhancing the sentence. 25.On the first issue, the record shows that the trial court was satisfied that the complainant stated that she was 15 years old, the evidence of PW2, her father was that she was born in 2005 and she was therefore 15 years old at the time the offence was committed. The age assessment report also confirmed that the complainant’s age was 15 years. The evidence of PW2 and the age assessment report was accepted by the trial court as proof that the complainant was 15 years old and, therefore, a child within the meaning of section 2 of the Sexual Offences Act. 26.Regarding penetration, the evidence of the complainant that she had sexual intercourse with the appellant was corroborated by the evidence of PW4 who was with the complainant on the material night that she was defiled. The trial court also accepted their evidence that the appellant was the perpetrator of the offence of defilement properly. 27.On appeal, the first appellate court reevaluated the evidence and was satisfied that the trial court properly addressed its mind on the issue. 28.The first appellate court was also satisfied with the finding by the trial court that penetration was proved by the evidence of the complainant and PW4 that they had sexual engagement that night and that even though the medical evidence showed that the hymen was not freshly broken and that the bruises and lacerations were old, the first appellate court pointed out on the strength of AML v Republic [2012] eKLR and Kassim Ali v Republic [2006] eKLR, that medical evidence is not the only evidence that can prove defilement. 29.On the identity of the appellant as the perpetrator of the offence, the first appellate court again agreed with the trial court, that the evidence of the complainant and PW4 showed that the two spent considerable time with the appellant; there was electric light in the house and, therefore, the appellant was properly identified as the person who defiled the complainant. 30.The first appellate court having reevaluated the evidence afresh, reached the same conclusion as the trial court that the prosecution proved the case against the appellant beyond reasonable doubt. The two courts below having reached concurrent findings on the matter, we find no reason to interfere with those findings of fact on a second appeal. 31.Having considered the appellant’s arguments against conviction, and noting that he is conducting his appeal in person and may not be aware of the legal technicalities involved, we are still not persuaded that both the trial court and the first appellate court misdirected themselves on any points of law that may necessitate our intervention. The complainant’s age was proved by the evidence of PW2, her father that she was 15 years which was corroborated by the age assessment report; the complainant’s evidence that she was defiled was supported by the evidence of PW4 who was with her; they spent the night together and had sexual intercourse and that the appellant defiled the complainant. 32.Turning to the last issue of sentence, we appreciate that section 8(3) prescribes a sentence of twenty years where person defiled is a child between the age of twelve and fifteen years but the trial court meted out a sentence of ten (10) years. The circumstances of the case therefore called for imposition of the correct and lawful sentence. However, as the appellant correctly argued, there was neither a cross appeal nor a warning by the first appellate court to the appellant of the possibility of the sentence being enhanced should his appeal fail. 33.An appellate court is entitled to interfere with the sentence imposed by the trial court where the trial court acted on wrong principles, overlooked relevant factors, or imposed an outright illegal sentence. In that regard, section 354 of the Criminal Procedure Code allows the first appellant court to reduce or increase the sentence. Then section 361(1) (b) of the Criminal Procedure Code allows this Court to consider the issue of sentence in a second appeal where the High Court enhanced the sentence in exercise of its appellate jurisdiction. 34.This Court has however clarified through several decisions that in order for the High Court as the first appellate court to enhance a sentence imposed by the trial court, the prosecution must have filed a cross appeal challenging the sentence imposed, or the first appellate court must warn an appellant of the possibility of the sentence being enhanced should his appeal be dismissed. This is intended to give the appellant an opportunity to be heard on the issue; to reconsider his position and elect whether or not to proceed with the appeal, notwithstanding the likely consequences. 35.In J.J.W. v Republic (supra), this Court stated as follows:It is correct that when the High court is hearing an appeal in a criminal case, it has powers to enhance or alter the nature of the sentence. That is provided for under section 354(3) (ii) and (ii) of the Criminal Procedure Code. However, sentencing an appellant is a matter that cannot be treated lightly. The court in enhancing the sentence already awarded must be aware that its action in so doing may have serious effects on the appellant. Because of such a situation, it is a requirement that the appellant be made aware before the hearing or at the commencement of the hearing of his appeal that the sentence is likely to be enhanced. Often times this information is conveyed by the prosecution filing a cross appeal in which it seeks enhancement of the sentence and that cross appeal is served upon the appellant in good time to enable him prepare for that eventuality. The second way of conveying that information is by the court warning the appellant or informing the appellant that if his appeal does not succeed on conviction, the sentence may be enhanced, or if the appeal is on sentence only, by warning him that he risks an enhanced sentence at the end of the hearing of his appeal.”(See also Sammy Omboke & Another v Republic (supra)) 36.In the instant appeal, the respondent did not file a cross appeal to challenge the sentence. The record does not show that the first appellate court warned the appellant that the sentence was likely to be enhanced and the attendant risk he would have to contend with should his appeal fail. In other words, the first appellate court did not give the appellant who was self-represented, and did not understand the implications of what enhancement of sentence would portend, should his appeal fail, an opportunity to enable him to prepare and argue his side of the case over the intended enhancement. 37.In the circumstances, and on that ground only, we agree with the appellant that the enhancement of the sentence was unlawful and calls for interference. 38.In the end, the appeal against conviction fails and is dismissed. The appeal against sentence is allowed. The sentence of twenty (20) years imposed by the first appellate court is hereby set aside and is substituted with the sentence of ten (10) years imposed by the trial court. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.ASIKE-MAKHANDIA………………………………………JUDGE OF APPEALE.C. MWITA………………………………………JUDGE OF APPEALB. ONGAYA………………………………………JUDGE OF APPEALI certify that this is a true copy of original.DEPUTY REGISTRAR