Oloo v Republic (Criminal Appeal E048 of 2024) [2026] KEHC 5166 (KLR) (24 April 2026) (Judgment)

Oloo v Republic (Criminal Appeal E048 of 2024) [2026] KEHC 5166 (KLR) (24 April 2026) (Judgment) Neutral citation: [2026] KEHC 5166 (KLR) Republic of Kenya In the High Court at Siaya Criminal Appeal E048 of 2024 DK Kemei, J April 24, 2026 Between Cuxton Alfred Oloo Appellant and Republic Respondent (Appeal against the conviction and sentence of Hon Christabel Maiyo (RM) in Siaya CMCR S.O No. E007 of 2024 dated 17/9/2024) Judgment (Appeal against the conviction and sentence of Hon Christabel Maiyo (RM) in Siaya CMCR S.O No. E007 of 2024 dated 17/9/2024)JUDGMENT 1.The Appellant herein Cuxton Alfred Oloo was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars were that 9th January 2024 at around 1400hours at Siaya Township in Siaya Sub County within Siaya County intentionally caused his penis to penetrate the vagina of A.A. O a child aged fourteen (14) years. 2.In the alternative, the Appellant was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual offences Act No. 3 of 2006. The particulars were that on 9th January 2024 at 1400hours at Siaya Township in Siaya Sub County within Siaya County intentionally touched the vagina of A.A.O a child aged fourteen (14) years with his penis. 3.The Appellant pleaded not guilty to all the charges and the case went to full trial in which the prosecution called five (5) witnesses. At the close of the prosecution’s case, the court found that the Appellant had a case to answer and thus placed him on his defense under section 211 of the Criminal Procedure Code. By judgment delivered on 25th May 2025, the Appellant was convicted and sentenced to serve life imprisonment. 4.Being dissatisfied with the decision of the trial court, the Appellant instituted this appeal against the conviction and sentence on four (4) grounds of appeal on the face of his Memorandum of Appeal dated 30th September, 2024:i).That the learned trial magistrate grossly erred in law and fact in relying on the suspicious and fictitious evidence of witnesses.ii).That the learned trial magistrate grossly erred in law and fact in holding that the medical evidence tendered as truthful and free from error and doubt without critically observing that the same was not credible in light of the age of the complainant.iii).That the learned trial magistrate erred in law and fact in convicting the Appellant on mere allegations and presumptions and holding the testimonies of the prosecution witnesses as truthful and free from doubt without the benefit of properly conducted investigation.iv).That the learned trial magistrate erred in law and fact in finding the Appellant guilty as charged in the absence of corresponding medical evidence of sexual activeness on the part of the Appellant.v)That the learned trial magistrate erred in law and fact when she misdirected herself in shifting the burden of proof to the Appellant and further ignoring the defence of the Appellant without proper evaluation.vi)That the learned trial magistrate failed to test the evidence of the prosecution witnesses and caution the circumstances thereby convicting on flimsy, inconsistent evidence that was not watertight.vii)That the learned trial magistrate erred in law and fact in in placing weight on the evidence without observing that their evidence contravened the provisions of article 50(4) of the constitution and section 36(1) as read with section 36(5) of the Sexual Offences Act.viii)Thatthe learned trial magistrate erred in law and fact in failing to observe that there were no substantive investigations thereby basing the conviction on mere allegations and fabrication.ix)That the learned trial magistrate erred in law and fact in believing the testimonies of the witnesses without considering that they had not been called to testify.x)That the learned trial magistrate grossly erred in law and fact in convicting the Appellant against the weight of the evidence.xi)That the learned trial magistrate erred in law and fact failing to notice that the doctor’s evidence never proved penetration.xii)That the learned trial magistrate erred in law and fact in relying on non-factual evidence without any tangible or supporting proof and proceeding to find that the prosecution had proved its case beyond reasonable doubt.The Appellant therefore prayed that the appeal be allowed and the conviction be quashed and sentence set aside. 5.This being the first appellate court, its duty is to re-evaluate the evidence presented to the trial Court and subject to an independent analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. The court must also take into account of the fact that it neither heard nor saw the witnesses and therefore to give due allowance for that. In Okeno – VS – Republic (1972) EA 32, it was held that;“An appellant 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 the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 6.The evidence tendered before the trial court was as follows; 7.. Alicia Akinyi Odhiambo (PW1) was the complainant and after a voire dire examination, she was allowed to tender a sworn testimony. She testified that she is aged 14 years and a student at Agoro Lieye Primary School and was in class eight the previous year. That she knew the Appellant as a veterinary officer regularly known as aka ‘’Khaki’’. That she had been seeing him in the area. That she recalled on 9/1/2024 she had gone to school to pick up a calling letter and later came back and found her grandmother had gone to attend a welfare group meeting and thus her father directed her to take the cows to the grazing field that had been leased. That she later went to the Appellant’s house nearby to borrow water to drink and on reaching there, the Appellant directed her to get into the house and fetch the water only for him to close the door and held her neck and mouth. That she could not scream. That the Appellant removed her clothes as well as his and then inserted his penis into her vagina. That the Appellant later threw her out and orderd her not to reveal to anyone about the incident or else he would kill her. That she felt pain as she went back home.That the Appellant later visited their home and claimed that his window panes had been broken as well as a mobile phone. That the following day she informed her aunt who later informed her grandmother who in turn alerted her father. That her father took her to Siaya County Referral Hospital and later to the police station. She identified her birth certificate (Mfi-1), Lab request form (Mfi-2), P3 form (Mfi-3), PRC form (Mfi- 4), Psychological Assessment form( Mfi-5).During cross-examination, she stated inter alia; that she told the police about what had happened; that she had known the Appellant as he usually comes to their home to treat cows; that the Appellant’s home is not far from theirs; that there was no one around during the date of the incident and it was only herself and the Appellant; that she tried to run away but the Appellant overpowered her and committed the act; that she informed her aunt as she was afraid of her grandmother and father; that the Appellant raped her. 8.Anton Odhiambo Otieno (PW2), testified that he is the father to the complainant (PW1). That on the material date the complainant had gone to graze the cows. That when he came back home in the evening, he was informed that his daughter had been defiled by the Appellant who is a neighbour. That he took the complainant to Siaya County Referral Hospital for medical checkup and later lodged a report at Siaya police station and had the Appellant arrested 9.Eunita Nyakundi (PW3) testified that she was a clinical officer working at Siaya County Referral Hospital. That she found healing bruises on the complainant’s labia minora which were palpable on touch. That there was a whitish vaginal discharge and that the vaginal swabs were bloodstained and that epithelial cells were present. That she produced the Birth Certificate, P3 form, PRC form, PRC psychological assessment as exhibits 1, 2, 3, 4 and 5 respectively.On cross-examination, she stated that the age of the victim at the time of examination was 16 years. That she did not find physical injuries.On re-examination, she stated that the injuries were on the genitalia where she found healing bruises on labia minora with palpable tenderness. 8.No. 102248 Havanan Dominic Onyango (PW4) was the investigating officer. He stated that the suspect was arrested and that an identification was conducted in which the suspect was positively identified by the victim. He produced the parade form as exhibit 6.On cross-examination, he stated that the victim claimed that she had been defiled by a person well known to her. That his collegue organized the parade as he wanted to ascertain the identity of the suspect. That he did not interrogate the Appellant. 8.Upon the close of the Respondent’s case, the trial court later ruled that the Appellant had a case to answer and was placed on his defence. He opted to tender a sworn testimony 9.Cuxton Alfred Oloo (DW1), testified that on the material date he went home for lunch while in company of a friend David Ochieng and on arrival he found the complainant grazing cattle within his compound and was fetching avocados. That he advised her not to fetch water. That he later found that the cows had drank the water and that he was forced to kick her out of his compound and also removed the cows. That he later went to town and came back at 5.00 PM only to find that his window pane had been damaged and that he enquired from the complainant and her family but nothing tangible came out. That he does not have any issue with the complainant and that he does not understand why the complainant’s family hatched a plan to harass him.On cross-examination, he stated inter alia; that the complainant and her family are his neighbours with whom he had had no issues in the past. 8.When considering the evidence on record, the learned trial Magistrate observed that the defense brought by the Appellant did not in any way cast doubt on the prosecution’s case and convicted him under section 215 of the Criminal Procedure Code. 8.The appeal was canvassed by way of written submissions. Both parties duly complied. 8.I have considered the record of the trial court and the submissions tendered. I find the issue for determination is whether the Respondent proved its case against the Appellant beyond reasonable doubt. 8.The burden of proof in all criminal trials is upon the prosecution to prove and that the standard is one of beyond any reasonable doubt. See Woolmington Vs Dpp [1935] AC 462. 8.The offence of defilement has three essential ingredients which must be proved by the prosecution before a conviction can be achieved. The said elements include; age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under section 8(1) of the sexual Offences Act No. 3 of 2006 and must each be proved for a conviction to ensue.“Section 8(1) of the Sexual Offences Act No. 3 of 2006 provides as follows: -(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.(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.(5)It is a defence to a charge under this section if -a.it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; andb.the accused reasonably believed that the child was over the age of eighteen years.(6)The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.(7)Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’s Act.(8)The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees. 8.As regards the age of the victim, it is noted that the same is crucial in that the eventual sentence to be imposed upon conviction is dependent upon the age of the victim.. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” (emphasis added). 8.Regarding proof of age, and as noted above, it is noteworthy to state at the outset that the importance of proving the age of a victim in sexual offences is paramount considering that under the Sexual Offences Act, the prescribed sentence is determined by the age of the victim. 8.Section 2 of the Children’s Act defines a child as a person under the age of eighteen (18) years, there are various ways which can be used to prove a victim’s age as held in Mwalango Chichoro Mwajembe V Republic, Criminal Appeal No. 24 of 2015 (UR) where the court stated as follows:“……..the question of proof of age has finally been settled by a recent decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof” It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. (See Denis Kinywa -Vs- Republic Criminal Appeal No. 19 of 2014) and (Omar Ucher -Vs- Republic Criminal Appeal No. 11 of 2015). We doubt if the courts are possessed of requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decisions of the Court of Appeal of Uganda in Francis Omuroni -Vs- Uganda Criminal Appeal No. 2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable...” 8.In the present case, the prosecution discharged this burden through the birth certificate (Exhibit 1) produced by PW3, which established that the minor was born on 14/5/2009, making her age as fifteen years four months and five days at the time of the incident. This was further corroborated by the Clinical Officer (PW3), satisfying the legal threshold. The Appellant’s ground of appeal alleging a "grudge" or procedural prejudice under Article 50 fails to challenge this specific ingredient, as the documentary proof of age is an objective fact that cannot be fabricated by a family dispute. However, as the age is past 15 years then the sentence should be one imposed where the age should be more than fifteen years as opposed to that under fifteen years old. Indeed, the clinical officer stated that she established the age as 16 years. Hence, the sentence should not be below 15 years as provided under section 8(4) of the Act. I find that the age of the minor (between 15-16 years) was proved beyond reasonable doubt. 8.As regards the aspect of penetration, Section 2 of the Sexual offences Act No. 3 of 2006 defines "penetration" as the partial or complete insertion of the genital organs of a person into the genital organs of another person. Penetration is proved through the evidence of the victim. The testimony of the victim in this case coupled with evidence from other witnesses was sufficient to determine whether penetration occurred. 8.Section 124 of the Evidence Act, Cap 80 provides as follows:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 8.In the case of Bassita vs. Uganda S.C. Criminal Appeal No. 35 of 1995, the Supreme Court of Uganda had the following to say in respect of proving penetration: -“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.” 8.In the present case, PW1 gave a graphic account of the Appellant inserting his genitalia into hers, which was corroborated by PW3’s medical findings such as vaginal penetration, inflammation, lacerations on the labia minora and discharge. 8.The Appellant’s defense of a grudge is diminished by the medical evidence; as held in Seme v Republic [2008] eKLR, that a mere denial cannot overturn positive medical findings corroborating the commission of the offense. 8.Kenyan courts have repeatedly held that a child’s testimony on penetration need not be scientifically perfect so long as it conveys the fact of intrusion. In Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal stressed that a victim’s account of how the male genitalia came into contact with her genitalia is sufficient to prove penetration. 8.In this case, the ingredient of penetration, the prosecution relied on the sworn testimony of the minor describing the insertion of a penis into her vagina, which was corroborated by the medical evidence of PW3. The Clinical Officer noted lacerations on the labia minora and concluded that there was vaginal penetration. This aligns with the definition of penetration under Section 2 of the Sexual Offences Act, which requires even the slightest partial insertion. This principle was reinforced in Mark Oiruri Mose v Republic, Criminal Appeal No. 295 of 2006, where the Court of Appeal at Kisumu held that the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence, and such penetration need not be complete or rupturing the hymen. 8.Furthermore, Kenyan jurisprudence makes clear that medical evidence is not indispensable where the complainant’s testimony is credible, but in this case it is overwhelmingly present and supportive. In Fappyton Mutuku Ngui v Republic [2012] eKLR and Geo Philip Muthuka v Republic [2015] eKLR, the courts held that penetration may be proved through either direct testimony or circumstantial indicators such as genital injuries. Here, the clinical findings are direct, immediate, and consistent with recent sexual intrusion. The defence offered no expert evidence to challenge these findings. As such, the trial court correctly held that the element of penetration was proved beyond reasonable doubt. Hence, I find the second ingredient namely penetration was adequately proved based on the victim’s evidence and the medical evidence. 8.As regards the issue of identification/participation of the Appellant, the same was firm, consistent, and free from any possibility of mistake. The complainant knew the Appellant prior to the incident and positively recognized him as the perpetrator. She knew him as ‘’Khaki’ ’and their neighbour who used to treat their family cows This was therefore a case of recognition rather than identification of a stranger, which Kenyan courts have consistently held to be the most reliable form of identification. In Anjononi & Others v Republic [1980] eKLR, the Court of Appeal held that recognition is “more reliable than identification of a stranger because it is based on the witness’s prior knowledge of the assailant.” The complainant’s evidence was direct, unwavering, and supported by the circumstances of close physical proximity during the commission of the offence, which left no room for doubt. The incident took place at around 2.30 PM and that the complainant had no difficulty in recognizing the Appellant. The complainant later informed her aunt that it was the Appellant who had defiled her and in turn her grandmother was informed and eventually he father came to know about it and the police was involved leading to the arrest of the Appellant. 8.The environmental circumstances also favoured accurate identification. The incident occurred in a setting where the complainant had sufficient opportunity to see and recognize the Appellant. The Court of Appeal in Wamunga v Republic [1989] eKLR emphasized that courts must evaluate lighting, distance, and duration of encounter when assessing identification. Here, the interaction was prolonged, intimate, and involved direct contact, making misidentification practically impossible. The complainant’s emotional distress immediately after the incident further supports the reliability of her identification as she described the perpetrator by name to PW2 and her aunt and grandmother without hesitation. 8.Finally, on identification, the complainant recognized the Appellant as a veterinary officer going by the nickname ""aka Khaki’’, a close neighbour living nearby. Jurisprudence establishes that recognition is more reliable than identification of a stranger (Anjononi v Republic [1980] eKLR). The trial court correctly analyzed the "grudge" defense and found it implausible that a mother (PW1) would subject her 9 year-old to the trauma of a medical examination and trial for a domestic squabble. Indeed, I find that it was highly unlikely that the mother of the victim would use her young and vulnerable daughter as a victim of defilement just to fix the Appellant because of an alleged dispute over payments. The identification was thus safe, and the defense was rightly rejected as a diversionary tactic. The identification parade conducted at the police station was really not necessary in view of the fact that the complainant knew him prior to the incident and even at the time of the offence. It is instructive that the officer who conducted the parade exercise was not even called to testify and that the investigating officer who produced the report did nothing much to it as he stated that his colleague was responsible but who was not called to testify. I find that the said identification exercise was not necessary as the victim knew her assailant. Iam satisfied that even without the identification parade, the Appellant was sufficiently identified by the complainant as the perpetrator 8.In the landmark case of R v Turnbull & Others [1977] QB 224, the court established guidelines for identification evidence, stating that recognition of a known person carries more weight than the identification of a stranger. Although the Appellant raised an alibi defence, the trial court was justified in rejecting it because he admitted being within the same neighbourhood and had met the complainant in his compound when he came home for lunch, and in Uganda v Wabwire Benson, HCT-09-CSC-0259-2016, it was held that a defence of alibi cannot stand where the accused is positively placed at the scene by the prosecution evidence. 8.Furthermore, the Appellant’s own conduct reinforced the prosecution’s case on identification. His presence at the scene, his inconsistent explanations, and the absence of any credible contrary account undermine the defense and strengthen the recognition evidence. Courts have held that where recognition is supported by the conduct of the accused and surrounding circumstances, the evidence is exceptionally strong. In Simiyu & Another v Republic [2005] eKLR, the Court of Appeal held that prompt and consistent reporting of the assailant’s identity enhances evidential reliability. In this case, the complainant reported the Appellant’s name immediately and that her father (PW2) confirmed the consistency of her report, and that no evidence exists of animosity or mistaken identity. The identification was therefore accurate, reliable, and proved beyond reasonable doubt. The ingredient of identification was therefore sufficiently proved, going by the above evidence, it is clear that the cumulative and conjunctive elements in a charge of defilement all proved and the evidence was consistent and corroborative hence sufficient to convict the Appellant for the offence. It is highly unlikely for the parents of the victim to use their young and vulnerable daughter as a victim of a sexual act so as to settle scores with the Appellant. In any event, the Appellant confirmed that he had no problem with the complainant and her family. Hence, the finding on conviction by the learned trial magistrate was quite sound and must be upheld. 8.On whether the sentence imposed upon the Appellant was appropriate, the statutory prescription and judicial discretion, the trial court imposed a sentence of twenty years’ imprisonment pursuant to Section 8(3) of the Sexual Offences Act, which prescribes this penalty for the defilement of a child aged between 12 to 15 years. While the Supreme Court in Francis Karioko Muruatetu & Another v Republic [2017] eKLR declared mandatory minimum sentences unconstitutional, it affirmed that courts must consider the gravity of the offense and the specific circumstances before sentencing. 8.In Jared Koita Injiri v Republic [2019] eKLR, the Court of Appeal upheld a life sentence for defilement of a minor, noting that despite the discretion granted by Muruatetu, the severity of the crime against a child of tender years justifies the harshest penalty. The trial magistrate exercised this discretion noting the mandatory nature of the provision and the need to deter such conduct. However, as noted above, the exact age of the complainant was 15 years four months and five at the time of the incident and hence the age bracket fell within the age of 15-16 years. This then brings the issue of sentence to be one under section 8(4) of the Sexual Offences Act which attracts a minimum sentence of 15 years’ imprisonment. Even though the same had not been preferred against the Appellant, I find that no prejudice was suffered as the same is curable under section 382 of the Criminal Procedure Code. 8.In the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus as regards interference with sentence: -“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”The Court of Appeal in Bernard Kimani Gacheru vs. Republic [2002] eKLR restated that:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.” (Emphasis added) 8.As regards aggravating factors and breach of trust, the sentence was just given due to the presence of significant aggravating factors. The victim was around 16 years old, a child who required protection rather than predation. Furthermore, the Appellant was a close neighbour with the family of the complainant and thus he occupied a position of trust and authority over the child. 8.In Mumbai v Republic [2014] eKLR, the court emphasized that breach of trust is a serious aggravating factor. The Appellant abused this trust by not only defiling the minor but also attempting to silence her with threats, which speaks to his moral blameworthiness. 8.As regards proportionality and protection of the public,it is noted that the victim impact statement noted the trauma suffered by the child, and the medical evidence confirmed physical injury (laceration on both labias) to a 16-year-old. Courts have consistently held that sentences in sexual offenses must reflect the societal outrage and the need to protect vulnerable children from sexual predators. Given the Appellant's lack of remorse and his attempt to dismiss the proceedings as a "grudge," there is need for the protection of the public which calls for deterrence, aligning with the principles of sentencing set out in the Criminal Procedure Code. Again, the Supreme Court in Republic Vs Joshua Gichuki Mwangi & Others Petition No. 18 of 2023, it was held that the minimum sentences provided for in the Sexual Offences Act remain lawful until the statute is declared unconstitutional. Whereas the trial court imposed a sentence of twenty years imprisonment based on the age of 14 years as disclosed in the street charge sheet, the fact that the real evidence was disclosed by the birth certificate which placed the age of the minor exactly at 15 years, four months and five days, it was prudent for the trial court to impose a sentence which was appropriate and in tandem with the age of the minor. I find that the suitable sentence should have been 15 years imprisonment instead of 20 years imprisonment. Iam therefore inclined to interfere with the sentence imposed by the trial court and substitute therefor with a sentence of 15 years imprisonment from the date of conviction as the Appellant managed to post bail. 8.In the result, it is my finding that the Appellant’s appeal on conviction is devoid of any merit. The same is dismissed. However, the appeal on sentence partly succeeds to the extent that the sentence of twenty years imprisonment is set aside and substituted with a sentence of fifteen years imprisonment which shall run from the date of conviction by the trial court namely 27/8/2024. DATED AND DELIVERED AT SIAYA, THIS 24TH DAY OF APRIL 2026.D.KEMEIJUDGEIn the presence of :Cuxton Alfred Oloo......................Appellant.Mocha......................................for Respondent.Mourine.....................................Court Assistant.SIAYA HCCRA NO. E053 OF 2025 JUDGMENT 8 | Page