https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9545

Mutua v Republic (Criminal Appeal E007 of 2025) [2026] KEHC 9545 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9545 (KLR) Republic of Kenya In the High Court at Mombasa Criminal Appeal E007 of 2025 NM Orina, J July 2, 2026 Between Daniel Kasanga Mutua Appellant and Republic Respondent (Being an appeal against the original conviction and sentence in Sexual Offences case number E028 of 2023 of the Chief Magistrate’s Court at Mombasa by Hon. A. Ithuku (CM) delivered on 22 January 2025) Judgment 1.The Appellant 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. He was convicted and sentenced to 15 years’ imprisonment. Aggrieved by the sentence, the Appellant filed an undated amended appeal on 17 April 2026 on the following grounds:a.That whether (sic) the mandatory nature of Section 8 (3) of the Sexual Offences Act meets the dictates of the Constitution;b.That whether (sic) the mandatory minimum sentence do take into account the overall objectives of punishment;c.That whether (sic) mandatory minimum sentences disregard all the individual characteristics of the offence;d.That whether (sic) mandatory minimum sentences are compatible with the promotion of human dignity;e.That may this honourable court be pleased to exercise its powers of discretion pursuant to Section 216 and 329 of the Criminal Procedure Code and reduce the sentence. 2.Although the grounds of appeal have been framed as abstract questions on the legality of minimum sentences under the Sexual Offences Act, this court takes the grounds as a whole as reflecting a dissatisfaction on the sentence passed. Whereas, a challenge on the constitutionality of the sentences under the Sexual Offences Act is left to another forum, if such a matter is pursued in that respect, this court’s mandate is restricted to an appeal arising directly from the conviction and sentence passed on the Appellant by the trial court. That shall be the scope of the analysis and determination below. 3.The Appellant was sentenced to 15 years’ imprisonment by the trial court in a sentencing ruling dated 22 January 2025. The trial court noted as follows:I have considered the plea in mitigation. I have also seen and considered the victim impact statement. The accused person has supplied a letter by Cpl Mwaria, Stephen an SDA chaplain from Shimo la Tewa Prison which commends on his character.The accused person has been convicted under Section 8(1) and (3) of the Sexual Offences Act. The penalty provided under Section 8 (3) is 15 years’ imprisonment. That is the minimum sentence. The accused person has been in remand throughout his trial. The time taken from 20.04.2023 to 22.01.2025 is taken into account, that is one year and 9 months. The offence is a serious one. The impact on the victim is likely lifetime. The accused took advantage of a gullible and impressionable teen. He will serve 15 years in prison. When the time spent in custody is taken into account he will serve 13 years and 3 months. 4.Section 8(3) of the Sexual Offences Act provides as follows: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. 5.The Appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act which prescribes the penalty for the charged offence as 20 years’ imprisonment. The graduated penalties as prescribed by the legislature under the Sexual Offences Act are in recognition of the seriousness of the offences and their long-term impact on the victims who, in the case of defilement, are minors. It is the role of Parliament to prescribe punishment and the role of the court is to apply punishment as prescribed. Even then, a court exercises discretion only to the extent of the limits set in the law. When imposing punishment where the law sets minimum punishments that can be rendered, the court’s discretion can only be exercised upwards. If persuaded by the mitigation offered then the court can only retain the minimum and not go below. If there are aggravating factors, the court will exercise the discretion is imposing a stiffer penalty than the minimum provided. The Supreme Court has held that the Sexual Offences Act does not create “mandatory minimum” sentences rather it creates minimum sentences and, therefore, a distinction must be made in this regard when considering the holding in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) Petition 15 & 16 of 2015 (Consolidated); [2017] KESC 2 (KLR).1 For Sexual Offences, therefore, there is no room for a court to impose a sentence that is lower than the minimum provided. That would be tantamount to usurping the role of the legislature. Until this court is moved appropriately to consider the constitutionality of those sentences, they remain valid.1See, Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR), para 57. 6.The trial court imposed a sentence of 15 years’ imprisonment on the Appellant despite the clear provisions of Section 8(3) which prescribes a sentence of 20 years. To that extent, the trial court erred. Although Section 354(3) of the Criminal Procedure Code empowers this court to enhance a sentence as a first appellate court, in the absence of a cross appeal by the Director of Public Prosecutions or a notice to the Appellant that his sentence may be enhanced on appeal, my hands are tied. The Court of Appeal has guided in this regard as follows in JJW v. Republic (2013) eKLRIt is correct that when the High Court is hearing an appeal in a criminal case, it has powers to enhance sentence or alter the nature of the sentence. That is provided for under Section 354 (3) (ii) and (iii) 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 ling 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. 7.In the end, this appeal is without merit and is hereby dismissed. JUDGMENT DATED AND DELIVERED VIRTUALLY THIS 2ND DAY OF JULY 2026________________NABIL M. ORINAJUDGEIn the Presence of:The ApplicantHamza – Court Assistant