[2023] KEHC 25442 (KLR)

Changtoek & another v Republic (Criminal Appeal E084 of 2023) [2023] KEHC 25442 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25442 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Appeal E084 of 2023

HM Nyaga, J

November 16, 2023

Between

Robert Changtoek

1st Appellant

Alice Chepkorir Keta

2nd Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence by Hon. R. Yator, Principal Magistrate in Molo Chief Magistrate’s Court SO Case No. 20 of 2020 delivered on the 18th November, 2022)

Judgment

1. The 1st Appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006. It was alleged that on diverse dates between 22nd March, 2019 and 1st February, 2020 in Rongai Sub-County within Nakuru County, he intentionally caused his penis to penetrate the vagina of VC a child aged 17 years.

2. In the alternative, the 1st Appellant was charged with committing an indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act, the Particulars being that on diverse dates between 22nd March,2019 and 1st February,2020 in Rongai Sub County within Nakuru County committed an indecent act with a child namely VC aged 17 years.

3. The 2nd Appellant was charged with the offence of Benefitting from Child Prostitution, contrary to Section 15(d) of the Sexual Offences Act. The particulars are that on diverse dates between 22nd March, 2019 and 1st February,2020 in Rongai Sub-County within Nakuru County being a close friend to VC a child aged 17 years she took advantage of her influence over her relationship to procure her for sexual intercourse.

4. The 1st appellant was convicted on the main charge and sentenced to serve fifteen (15) years imprisonment whereas the 2nd Appellant was also convicted and sentenced to serve 10 years’ imprisonment.

5. Being dissatisfied with the said conviction and sentence, the appellants lodged an appeal based on the following grounds: -i.That the Learned Trial Magistrate erred in points of Law and fact by failing to evaluate the evidence as a whole and observe that the prosecution never proved their case beyond reasonable doubt.ii.That the Learned Trial Magistrate erred in law and in fact by convicting and sentencing the Appellants based on inconsistent and contradictory evidence that was marred with discrepancies.iii.That the Learned Trial Magistrate based her finding by convicting and sentencing the 1st Appellant with the offence of defilement contrary to Section 8(1)(4) and that of committing an indecent act with a child contrary to Section 11(1) of Sexual Offences Act as the evidence on record never supported the charge.iv.That the Learned Trial Magistrate based her finding on hearsay and arrived at a wrong decision in the finding the 2nd Appellant guilty of the offence of benefiting from child prostitution contrary to Section 15(d) of the Sexual Offences Act.v.That the Learned Trial Magistrate erred in Law and in fact in failing to consider the circumstances under which the offences are alleged to have been committed.vi.That the Learned Trial Magistrate erred both in law and fact by rejecting the plausible defence by the Appellants without further explanation.vii.That the Learned Trial Magistrate erred in law and fact in sentencing the Appellants harshly and ignoring the mitigation tendered by the Appellants.viii.That the conviction could not have been reached by any reasonable tribunal properly directing its mind on the law and the facts.ix.That the conviction and sentence cannot be supported by any scintilla of evidence tendered before the trial court.x.That the trial court exhibited naked bias and prejudice against the Appellants.

6. Parties exchanged written submissions in support of their arguments.

Appellants’ Submissions 7. On whether the complainant was a minor at the time of the incident, the Counsel for the Appellants submitted that the birth certificate produced to prove the age of the victim was manufactured purposefully for the case as an afterthought to incriminate the 1st Appellant as the same is dated 11th September, 2019 whereas the incident took place between March 2019 and February,2020. The Counsel referred this court to the case of Edwin Nyambogo Onsongo vs Republic (2016)eKLR for the proposition that the nature of evidence of proof of the Victim’s age has to be credible and reliable.

8. The Counsel then submitted that the evidence produced by the prosecution was neither credible nor reliable and therefore the conviction and sentencing was wrong as the court relied on defective documents.

9. In regards to penetration, the Appellants’ Counsel submitted that the medical report produced at the trial court informed the court that the complainant was 30 weeks pregnant. Citing the case of Evans Wanjala Wanyonyi vs Republic[2019] eKLR where the court held that an essential ingredient in the offence of defilement is penetration not impregnation, he submitted that the fact that complainant was expectant did not prove penetration and that the 1st Appellant defiled the complainant.

10. The Counsel further argued that a DNA test could have aided the court in confirming who the “owner” of the foetus was and that the absence of the same created reasonable doubt as to who defiled the complainant a further reason to support their view that the consequent conviction and sentencing was wrong.

11. In regards to the offence of benefitting from child prostitution, the Appellants’ counsel submitted that the trial magistrate’s finding on the same was based on hearsay.

12. Citing the provisions of Section 15(d) of the Sexual Offences Act and the case of Hassan vs R(2015) eKLR, the Counsel submitted that the prosecution did not prove that the 2nd Appellant had persuaded and influenced the complainant to have sexual intercourse with the 1st Appellant.

13. On sentencing, the counsel for the Appellant submitted that the same was harsh and ignored mitigation tendered by the Appellants. It was the Counsel’s position that the trial magistrate had a discretion in sentencing the Appellants.

14. In buttressing his submissions, the Appellants’ counsel relied on the case of Francis Karioko Muruatetu & Another vs Republic Petition No. 15 of 2015 & Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021) [2022] KEHC 13118 (KLR) (17 May 2022) (Judgment).

15. The counsel further submitted that proof in criminal cases is beyond reasonable doubt but in the instant case, the ingredients of the offences that the appellants were charged with were not proved beyond reasonable doubt.

16. In support of his submissions, reliance was placed Miller vs Ministry of Pensions, [1947] 2 All ER 372 & Gaileth Mubarak Elkana vs Republic[2013] eKLR

17. The appellants’ counsel prayed that the appellants be acquitted of the charges levelled against them.

Respondent’s Submissions 18. The Senior Prosecution Counsel, in opposing the appeal, referred this court to the provisions of Section 8(1) of the Sexual Offences Act and the cases of George Opondo Olunga vs Republic [2016] eKLR where the court discussed the ingredients of defilement. Also cited wasEdwin Nyambogo Onsongo vs Republic (supra) where the court held that the age of a person can be proved by documentary, oral or by medical evidence.

19. Regarding the age of the complainant, the prosecution counsel submitted that the same was proved by PW2 and corroborated by evidence of the PW4 who produced the birth certificate. She argued that the birth certificate was acquired in the year 2019 before the Appellants were arrested. She therefore contended that the allegation that the birth certificate was manufactured did not arise. She posited that the evidence of age was credible.

20. On the issue of penetration, the respondent submitted that penetration was proved by the evidence of the victim and corroborated by a Medical Officer who produced the P3 Form and PRC form.

21. On sentence, the prosecution counsel submitted that the same was in accordance with the law. She contended that the cases relied on the Appellants on this issue are inapplicable.

22. She urged this court to uphold the trial’s court sentence.

Analysis and Determination 23. I have considered the appeal and submissions by both parties. I have also read the record of the trial court and the impugned judgment.

24. As a first appellate court, this court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial court had the advantage of hearing and observing the demeanor of the witnesses. See Okeno vs Republic [1972] E.A32.

25. The issues that arise for determination in this appeal are:a.Whether the prosecution proved the ingredients of the charges to the desired threshold.b.Whether the sentence imposed against the Appellants was excessive and harsh.

26. The 1st appellant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act which provides:“8(1) a person who commits an act which causes penetration with a child is guilty of an offence termed defilement.8(4) 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.”

27. In the case of Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013 the court stated that:“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

28. It is clear therefore that the specific elements of the offence defilement arising from Section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are:1)Age of the complainant;2)Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and3)Positive identification of the assailant.

29. The offence of defilement is thus rooted on the above ingredients as provided for under section 8(1) of the Sexual Offences Act and must be proven for a conviction to issue. (see George Opondo Olunga vs. Republic[2016] eKLR.)

Age of the complainant 30. The Court of Appeal in Edwin Nyambogo Onsongo vs Republic (supra) 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.”

31. In Fappyton Mutuku Ngui vs Republic [2012] eKLR where it was held:“... That “conclusive” proof of age in cases under Sexual Offences Act does not necessarily mean certificate. Such formal documents might be necessary in borderline cases, but other modes of proof of age are available and can be used in other cases.”

32. The importance of proving age was underscored by the Court of Appeal in the case of Hadson Ali Mwachongo vs Republic [2016] eKLR, as follows: -“The importance of proving the age of the victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim. In Alfayo Gombe Okello v Republic Cr. App 203 of 2009 (Kisumu) this Court stated as follows: -In its wisdom, Parliament chose to categorize the gravity of that offence on the basis of age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. This must be so because dire consequences flow from proof of the offence under section 8(1)”

33. A child is defined as a person under the age of eighteen years. PW1, the victim testified that she was born on 15th September,2002 and that at the time of the commission of the offence, she was in class 8. PW2, the victim’s mother corroborated the victim’s testimony that she was in class eight at the time the offence was committed. PW4 produced the birth certificate showing that the victim was born on 1st September, 2002. Based on the said birth certificate, then it is was shown the complainant was 17 years at the time of the commission of the offence.

34. The Appellants have argued that the aforesaid birth certificate was procured to incriminate them as it is dated 11th September,2019 whereas the incident occurred between March and February, 2020. The date of issuance of the birth certificate does not make it inauthentic unless there is proof to that effect. There is no evidence shown to court that the prosecution fraudulently obtained a fake birth certificate. Its authenticity was not challenged. This being an official government document, I find it a proper document to demonstrate the age of the complainant. In any case, the victim and her mother were categorical that the former was 17.

35. I therefore find the age of the victim was 17 years old.

Penetration 36. Section 2(1) of the Sexual Offences Act defines penetration as:“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”

37. The key evidence relied by the courts in defilement cases in order to prove penetration is the complainant’s own testimony which is usually corroborated by the report presented by the medical officer. See Dominic Kibet Mwareng vs Republic [2013] eKLR.

38. In this case since the complainant was a minor, the evidence of the Clinical Officer is key so as to corroborate such testimonies.

39. I have critically analysed the evidence of PW3, the clinical officer who testified herein. It was his testimony that he examined the victim with history of being defiled sexually by a person known to her. He said there was no body injury and that the complainant was 30 weeks pregnant and hence it was confirmed she was defiled. He produced the P3 and PRC Forms.

40. According to the P3 Form, the injury is described as Gravid uterus and the age of the injuries was approximated to be 30 weeks old.

41. The victim testified that she used to sleep at the house of the 2nd Appellant with her sister, one MC. She said the 2nd Appellant asked them to take her to the shop at night but they did not reach the shop. That they entered a house near the road. The 2nd Appellant then locked her inside that house and left with her said sister around 8. 00 p.m. She said that house belonged to the 1st Appellant and he was present on the material day. She did not know why the 2nd Appellant left her there. She said the 1st Appellant, whom she remained with, defiled her. She said she knew the 1st Appellant well as his brother is married to her sister. She said the 1st Appellant did not use protection when he defiled her.

42. In cross examination, she said that the 1st Appellant had taken her to his house three times and defiled her.

43. PW2 confirmed that the victim used to sleep at the 2nd Appellant’s house. It was her testimony that the 2nd Appellant informed her about the victim’s pregnancy and that the 1st Appellant was responsible. She stated that she took the victim to hospital and she was confirmed pregnant, and in May 2020 she gave birth. She said she took care of the child as the victim continued with her education but unfortunately in February 2020 the child fell sick and passed away. She said the victim also told her that the 1st Appellant was responsible for her pregnancy. She stated that after reporting the incident at the police station, the 1st Appellant went to her house begging for forgiveness however her brother in law took him to the police station where he was locked up. She said at the hospital, the 1st Appellant stated that it was the 2nd Appellant who used to take the victim to his house.

44. PW4 was MC. Her evidence in my view was of no probative value as it was marred with contradictions. At one point she stated that the complainant used to leave alone at night to unknown place and at the same time stated that the 1st Appellant would come at night for the complainant and they would go to his place, and the complainant would return in the morning.

45. The investigating officer in this matter also testified as PW4. It was his testimony that the incident herein was reported by the victim and her mother. He said he booked the report in the OB and issued them with a P3 form which was filled at Rongai Hospital. That on 16th February,2022 the members of the public with the mother of the victim took the 1st Appellant to the station. He said based on previous statements of the victim and her mother, he noted that the 2nd Appellant used to organize how the victim would sleep with the 1st Appellant and therefore in company of Corporal Kipkebut, he went and arrested her. He said the complainant was interrogated and she stated that the 1st Appellant defiled her and 2nd Appellant organized the relationship between her and the 1st Appellant. It was his testimony that the victim positively identified the two accused persons and he proceeded to charge them with the offences herein. He stated that he could not conduct DNA as the baby died and was buried secretly. He also stated that at the time he was on leave and the court had been shut due to the corona pandemic.

46. The 1st Appellant in his unsworn testimony denied committing the offence. He said on the material day, one D who was an uncle to the victim looked for him alleging that he used to take the victim to his compound. He said he went and met the parents of the victim and told them to go to the house the victim alleged to have been going but the victim’s father called a motor bike and took him to the police station. He said on arrival they found a police officer who charged him with defilement.

47. DW2, was the 2nd Appellant herein. She similarly gave unsworn testimony. She confirmed that the victim was her cousin and she used to sleep at her place. She however denied taking her to the 1st Appellant’s house or convincing her to go to the said house.

48. DW3 was a neighbour to the parties herein. He gave sworn evidence. He testified that the 2nd Appellant was a respectable lady and that the victim had bad manners since primary school as she used to disappear from home for weeks and at times not go to school. According to him the allegations against the Appellants were false.

49. In cross examination, he confirmed the victim used to sleep in the 2nd Appellant’s house and that he could not know whether the victim used to be taken to the house of the 1st Appellant at 8. 00p.m or 11. 00 p.m. He said the 2nd Appellant was his friend and most of the time he was with her. He said he had never been in the 2nd Appellant’s house at night.

50. I have subjected all evidence to careful scrutiny. I have carefully considered the issues raised by the appellants in this appeal and find that the trial magistrate properly directed himself in reaching the conviction. She did not rely on the pregnancy alone as proof of defilement. She relied on the pregnancy in addition to other evidence, to find penetration had occurred.

51. I also find that the clinical officer (PW3) was very clear that penetration did occur. Notably, since the incident was reported late, the injuries were 30 weeks old. However, this does not rule out penetration. The inevitable conclusion from the analysis of the evidence is that PW1 could not have become pregnant without sexual intercourse and, therefore there was ample evidence to prove that penetration did occur. Accordingly, I find so and reject the appellants’ argument that there was no proof of penetration.

52. The question that I should subsequently answer is whether the 1st Appellant was the Perpetrator.

53. The 1st Appellant denied having sexual relations with the complainant and went on through the evidence of DW3 to attack the character of the complainant stating that she had bad manners since primary school and would disappear from home for weeks. The 1st Appellant faulted the prosecution’s failure to conduct a DNA test linking him to the offence.

54. There are clear guiding principles upon which the court must analyse evidence of identification. As a rule, the best evidence of identification is that of recognition. See Francis Muchiri Joseph vs Republic [2014]eKLR.

55. The physical identification of the 1st Appellant is not in doubt as he was a neighbour and brother- in- law to the complainant. The only issue is whether he defiled the complainant.

56. It is a well established principle of law that a DNA test is not necessary to establish the offence of defilement or rape. In AML vs Republic [2012] eKLR the Court of Appeal succinctly held that: -“The fact of rape or defilement is not proved by way of a DNA test but by way of evidence.”

57. Further, the court in the case of Kassim Ali vs Republic Cr. App. No. 84 of 2005 (Mombasa) affirmed the decision and stated that: -“… [The] absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.”

58. In addition, Section 36 of the SOA is not mandatory as it is couched in permissive terms. Faced with a similar argument, in Williamson Sowa Mbwanga vs Republic [2016] eKLR, the Court of Appeal pronounced itself thus:“...it is patently clear to us that whilst paternity of PM’s child may prove that the father of the child had defiled PM, that is not the only evidence by which defilement of PM can be proved. The fact, as happens in many cases, that a pregnancy does not result from conduct that would otherwise constitute a sexual offence does not mean that the sexual offence has not been committed. In this case, there does not have to be a pregnancy to prove defilement. A DNA test of the appellant would at most determine whether he was the father of PM’s child, which is a different question from whether the appellant had defiled PM. As the Court of Appeal of Uganda rightly stated, in the sexual offence of defilement, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence and that it is not necessary that the hymen be ruptured. (See Twehangane Alfred V. Uganda, CR. APP. NO. 139 OF 2001).”It is partly for this reason that section 36(1) of the Sexual Offences Act is couched in permissive rather than mandatory terms, allowing the court, if it deems it necessary for purposes of gathering evidence to determine whether or not the accused person committed the offence, to order that samples be taken from him for forensic, scientific, or DNA testing.”

59. Guided by the above authority, I find that it was not necessary for the DNA to be conducted as the same was not necessary to prove penetration. The Appellants’ submissions in this regard therefore fail.

60. It is also trite law under section 124 of the Evidence Act that a court can convict an accused person on the sole evidence of a victim as long as the court is convinced the victim is telling the truth and records reasons for such belief. The Court of Appeal in Arthur Mshila Manga vs Republic, Criminal Appeal No. 24 Of 2014 [2016] eKLR held that: -“It is trite that under the proviso to section 124 of the Evidence Act, a trial court can convict on the evidence of the victim of a sexual offence alone. (See Mohamed V. Republic [2008] KLR (G&F), 1175 and Jacob Odhiambo Omuombo V. Republic (supra). However, before the court can do so, it first must believe or be satisfied that the victim is telling the truth and secondly it must record the reasons for such belief.”

61. In this case, the trial magistrate in her judgement believed that the complainant was telling the truth. I have looked at the record. The complainant was clear in her testimony as to what exactly happened. She was also steadfast during cross-examination by the 1st Appellant and was not shaken. There was no motive in telling lies and her credibility and that of her mother and the investigating officer were beyond doubt. I find, as the trial court did, that the complainant was telling the truth and that the 1st Appellant committed the offence.

62. I will now consider whether the Prosecution proved beyond reasonable doubt the offence against the 2nd Appellant of benefiting from child prostitution contrary to section 15 (d) of the Sexual Offences Act No. 3 of 2006

63. Section 15 of the S O A No 3 O 2006 states as follows: -Any person who –“d) takes advantage of his influence over, or his relationship to a child, to procure the child for sexual intercourse or any form of sexual abuse or indecent exhibition or show;Commits the offence of benefiting from child prostitution and is liable upon conviction to imprisonment for a term of not less than ten years.”

64. In this respect, the 2nd appellant contended that there was no evidence tendered to prove that she had persuaded or influenced the complainant to have sexual intercourse with the 1st Appellant. To bolster her case, she relied on the case of Hassan vs R2015 eKLR the court held that;“…. in effect therefore though the charge is related to prostitution, the prosecution is not required to prove prostitution in the common sense of offering sex for material gain. The prosecution is required to prove that; the victim was a child. It also required to prove relationship and influence over….it is imperative for the persecution to prove that the appellant did persuade or influence the complainant to have sexual intercourse.”

65. In the instant case, it is not in dispute that the victim and the 2nd Appellant are related. The 2nd Appellant in her testimony told court that the complainant was her cousin. It is also not disputed that the complainant used to sleep in the 2nd Appellant’s house. The complainant testified that it was the 2nd Appellant who organized the relationship between her and the 1st Appellant that resulted in her pregnancy. The mother of the complainant (PW2) told court that in January 2020, she took the Complainant to [Particulars Withheld] Secondary school and the 2nd Appellant called her saying that the complainant was pregnant but she told her that she would take her to school as she had secured a vacancy. She said the 2nd Appellant then called the school and the school deputy advised her to take the complainant to the hospital to confirm whether she was pregnant. She complied and upon confirming the complainant was pregnant she reported the incident to the police station.The 2nd Appellant neither challenged this position during cross examination nor denied the same in her testimony. If at all the 2nd Appellant did not take part in the occurrence of the offence, then what informed her suspicion that the Complainant was expectant?

66. I agree with the trial court’s position that the 2nd Appellant took advantage of her relationship with the complainant considering she was an older woman, hosting the complainant, who could not disobey her instructions. The evidence of the complainant was credible, consistent and free from any contradictions. I’m convinced that she was telling the truth when she stated that the 2nd Appellant led her to the 1st Appellant.

67. After analysing the evidence tendered afresh, I find, just like the trial magistrate, that the evidence adduced at the trial was sufficient to convict the appellants. I uphold the conviction for both appellants.

Whether the sentences meted out were manifestly excessive 68. The appellants argued that the sentences are manifestly excessive in the circumstances of this case.

69. The trial court applied Section 8 (4) and Section 15 (a) (g) of the Sexual Offences Act to convict. The section provides:“(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.”

70. Section 15 (1) (a) of the Sexual Offences Act states:“Any person who—(a)knowingly permits any child to remain in any premises, for the purposes of causing such child to be sexually abused or to participate in any form of sexual activity or in any obscene or indecent exhibition or show;(g) commits the offence of benefiting from child prostitution and is liable upon conviction to imprisonment for a term of not less than ten years”

71. The issue of mandatory minimum sentences in the Sexual Offence Act has been the subject of various decisions by superior courts, following the Supreme Court’s decision in Francis Karioko Muruatetu& another vs Republic [2017] eKLR (See Christopher Ochieng vs R[2018] eKLR and Jared KoitaInjiri vs R[2019] eKLR).

72. In Dismas Wafula Kilwake vs Republic [2018] eKLR, the Court of Appeal set out the factors to be considered in sentencing under the Sexual Offences Act as follow:“[We] hold that the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand.On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.”

73. Odunga J (as he then was), in Philip Mueke Maingi & 5 others vs Director of Public Prosecutions & another (Petition E017 of 2021) [2022]KEHC 13118 (KLR) held as follows;“Taking cue from the decision in Francis Karioko Muruatetu directed that those who were convicted of sexual offences and whose sentences were passed on the basis that the trial Courts had no discretion but to impose the said mandatory minimum sentence are at liberty to petition the High Court for orders of resentencing in appropriate cases.”

74. From the above, it is settled that any provision for a mandatory minimum sentence is unconstitutional and the court is bound to re-examine the sentence.

75. Having said this, the court must not forget that offences of defilement are serious offences and merit stiff sentences and there has to be a good reason to depart from the indicative sentence prescribed. The court would not be wrong if it found that a convicted person would deserve a sentence equivalent to the mandatory sentence or more, provided that the reasons are stated.

76. The Sentencing Policy Guidelines require the court, in sentencing an offender, to take into account both aggravating and mitigating factors. The aggravating factors include use of a weapon to frighten or injure the victim, use of violence, the number of victims involved in the offence, the physical and psychological effect of the offence on the victim, whether the offence was committed by an individual or a gang, and the previous convictions of the offender.

77. In the case of Wanjema vs Republic (1971) EA 493 the court laid down the general principles upon which the first appellate Court may act on when dealing with an appeal on sentence. An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact or that it took into account an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive.

78. The appellate Court must however not lose sight of the fact that in sentencing, the trial Court exercised its discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion.

79. In mitigation, the Appellants stated as follows: -1st Appellant- I have young children at home and I do pray for forgiveness2nd Appellant- I pray for forgiveness as it was false.

80. The Court in sentencing the Appellants, held as follows: -“I do note the accused’s mitigation and note the nature of offence as rampant and that the same has to be deterred considering the sentence is held mandatory.”

81. It is apparent that the trial magistrate failed to appreciate that he could exercise discretion in respect of the so called mandatory minimum sentences.

82. In the instant case, I consider that the complainant became pregnant out of the defilement and subsequently lost her baby. This is a permanent scar of the defilement as she would certainly live forever with shame and mental trauma.

83. I also note that this is a serious offence and the Appellants are related to the child, yet they unfairly took advantage of her instead of protecting her.

84. I also take cognisance that the Appellants were first time offenders and the illegal acts committed against the complainant did not curtail her progression in education.

85. Taking all factors into consideration, I find the mandatory sentences meted out against the Appellants were unjustified. Therefore, I proceed to order as follows: -i.The appeal on conviction lacks merits and is dismissed.ii.The sentence of 15 years imposed against the 1st Appellant is set aside and substituted with a sentence of 10 years.iii.The sentence of 10 years imposed against the 2nd Appellant is set aside and substituted with a sentence of 5 years.iv.Both sentences will run from the date the appellants were first remanded in lawful custody. i.e. 17. 02. 2020.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 16TH DAY OF NOVEMBER, 2023. H. M. NYAGA,JUDGE.In the presence of;C/A JenifferKihara for stateAppellant presentMs Chepkotul for appellants