https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9127

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CRIMINAL APPEAL NO. E043 OF 2025** **DAVID KATANA KARISA …………….……………………………………… APPELLANT** **VERSUS** **REPUBLIC …………….………………………………………...……………. RESPONDENT** ***(Being an appeal against the conviction and sentence by Hon. IVY WASIKE (PM) in Kilifi CM (SO) Case No. E094 of 2023)*** **JUDGEMENT** 1. The appellant herein David Katana Karisa, was jointly convicted with his co-accused Charles Nyoka Hamisi on 24th April 2025 by the Chief Magistrate’s Court, Kilifi for the offence of Gang Defilement contrary to section 10 of the *Sexual Offences Act, No. 3 of 2006* in Count I and Threatening to Kill contrary to Section 223 of the *Penal Code* in Count II. 2. Both accused were sentenced to 10 years imprisonment in respect of Count 1 and 1 year imprisonment for Count II respectively. Aggrieved, David Katana Karisa filed the present appeal challenging both conviction and sentence in respect of the two Counts. 3. In Count I, the particulars of the offence are that on diverse dates of July and August 2023 during day time in Roka location in association with others who are before court and with common intention caused penetration of his genital organ namely penis into the genital organ namely anus of P.A J a child aged 14 years. In Count II, the particulars of the offence are that on diverse dates of July and August 2023 during day time in Roka location in Kilifi North Sub County within Kilifi County without lawful excuse uttered words*, “tutakuuwa kama utasema hiki kitendo popote”* threatening to Kill P.A.J. 4. The evidence adduced by the prosecution was that, sometimes in August 2023, PW3 father to P.A. J the complainant was informed by Ali and Martin that the accused usually defile P.A.J. He became curious and started investigating the allegation. Later that day, the complainant was walking strangely as he went home which is located in Roka location within Kilifi North Sub County. Upon inquiry, the accused hesitantly informed him that Katana and Charles had had sex with him in the anus. He reported the incident to the village elder, the chief at Matsangoni and then took the accused to Kilifi Sub County hospital for treatment. The complainant’s evidence was that he knows the two accused very well and that Charles lives in Viwanjani while David stays a bit further. He stated that both accused jointly defiled severally at different times. He recalled an incident where the accused accosted him while he was watching videos (movies) took him to the toilet, closed his mouth and nose with a napkin and sodomised him. 5. In another incident, the complainant testified that the two accused chased him to the bushes where he fell down after he was tripped by a stone. He narrated that David removed his trouser, made him lie on his belly in the ground and had sex with him in the anus. After finishing, Charles followed and then Katana. He stated that after they had finished, he wiped himself with tree leaves, went home showered and slept. He testified the three men threatened to stab him to death if he reported the matter to the chief. He confirmed that his father, PW3 knew was informed by Ali and Martin about the sodomy. Thereafter, he accompanied by his father reported the incident to the chief and was taken to hospital. 6. PW1 testified that he worked at Kilifi County hospital and produced treatment notes, P3 Form and Post Rape Care form as exhibits. According to his evidence, on 29 August 2023 at about 6pm, P.A.J was examined at Roka Maweni Dispensary within Kilifi County after it was reported that he had been gang raped by three men sometimes in August 2023. The examinations revealed that he had pain in the anus and had difficult in walking. The anus was found to have cuts and bruises at the anal opening. The witnesses also produced P.A.J’s Child Health Card which showed he was born on 19th September 2008. He concluded that the injuries were fresh, recent and that there was evidence of sodomy. 7. PW 4 the investigating officer stated that he was based at Matsangoni Police Station. On 29 August 2029 at about 6pm, PW3 reported that the complainant had been gang defiled by the two accused who also threatened to kill him if he reported the matter. It was reported that the complainant had been sodomised severally by the accused, at one time on 5 July 2023 at about 1145 hrs where the two accused gave the complainant Kshs 50, took him to the bush where the two were herding cattle, David removed his clothes, applied saliva on his anus and inserted his penis in P.A.J’s anus. After finishing, Charles did the same act and threaten him not to report. 8. The report further indicated that between July and August 2023, the accused sodomised the complainant severally. He referred the complainant to hospital for treatment and a P3 form was filled on 30 August 2023. He stated that the accused were arrested in their homes on 30 August 2023 at 3 am after the complainant took the police to their houses. Later, on 30 August 2023, they conducted an identification parade where the complainant identified the appellant though recognition. The appellant was then charged with the instant offences on 31 August 2023. 9. Put on their defence, both accused denied the charges as false without any further information. The appellant herein called his father, DW3 as his witness. His testimony largely rehashed the events on 30 August 2023 when the appellant was arrested adding that he was heavy tonged and had a speech problem. He further alleged that that the complainant was a bit mad. DW4, the 2nd accused mother and witness testified that both the appellant and complainant were her neighbors. She testified that between July and August 2023, the 2nd Accused who was a herder would go in the morning herd and get back in the evening, eat and sleep. She claimed that the 2nd Accused and complainant were a bit mad and that he (2nd Accused) dropped school at class 6 since he did not understand. 10. The trial court rendered judgement on 24 April 2025 whereat both accused were convicted as charged and sentenced. Aggrieved, the appellant, who was the 1st Accused, filed the present appeal where he raised three (3) grounds of appeal: 11. The trial court erred in law and fact by convicting the appellant despite the fact that the prosecution had failed to prove all ingredients of the offences. 12. The trial court erred in law and fact by convicting the appellant based on contradictory and inconsistent evidence. 13. The trial court erred in law and fact by convicting the appellant based on a defective chargesheet. 1. At the hearing of the appeal, both parties filed written submissions which they relied on. On the first ground, the appellant submitted that gang defilement is defined under Section 10 of the *Sexual Offences Act*. He went on to state that “gang” means two or more people and submitted that a person may not have engaged in the sexual cat of defilement but is guilty of gang rape or defilement if he was in the company of another or others who committed the offence within common intention. He cited the case of ***Cosmas Koech vs Republic (2021) eKLR*** to buttress his argument. He submitted that for the offence of defilement to be established, elements of the offence which are age of the victim, penetration and positive identification of the perpetrator must be proved. 2. He contended that the prosecution witnesses gave contradictory accounts on the age of the complainant, some claiming he was 14 years while others stating he was 13 years. He contested the Child Health Card (P Exb 3) which he claimed was not properly produced by PW1 in contravention of Section 77 of the *Evidence Act.* He relied on the case of ***Baraka Kahindi vs Republic (2019) eKLR*** on inadmissibility of such evidence and urged the court to disregard it. 3. On the element of penetration, the Appellant submitted that there were material contradictions on the prosecution witnesses as to the facts of the case, dates when the offence occurred and evidence adduced. He further took issue with the failure by the prosecution to call Martin and Ali as witnesses. He against challenged the propriety of PW 1 in producing the P3 form, Post Rape Care form and treatment notes (P Exh 1,2 and 4) by dint of Section 77 of the *Evidence Act.* 4. Regarding the element of identification, he challenged the probative value of the identification parade in view of the fact that no basis was laid to warrant it. He faulted the prosecution for not calling witnesses who were said to have been present at the commission of the offence which he termed as detrimental to the prosecution’s case. Finally on the element of commission of the offence in association with others, he argued that while the charge sheet makes reference to the accused being charged with others before the court, only two of them were arraigned instead of three as per the evidence of the complainant. He summed up by arguing that the ingredients of the offence of gang rape were not proved and urged the court to find so. 5. On Count II, that is threatening to kill contrary to Section 223 (1) of the *Penal Code*, it was submitted that there was a variance between the particulars of the changed sheet against the evidence adduced in court by PW1 and PW4. Secondly, the Appellant faulted the trial court for not analyzing the ingredients of the offence as required under Section 169 of the *Criminal Procedure Code.* He further pointed out what he termed as inconsistencies in the evidence of PW1. 6. On the second ground, he submitted that the prosecution case was full of inconsistencies and contradictions. He cited the case of ***DPP vs Kinya (Criminal Case 80 of 2019) {2024} KEHC 7210 (KLR)*** to support his argument. 7. On the third ground, he submitted that whereas the charge sheet indicated that the offence was committed in July and August 2023, PW2 and PW3 failed to give the date of the offence while PW4 gave the date as 5th August 2023. He argued that as such there was variance between the evidence on record and the charge sheet which renders the charge sheet defective. He contended that this offended his right to fair trial under Article 50 (2) (b) of the *Constitution* and Section 134 of the *Criminal Procedure Code*. He relied on the case of ***Mokera vs R (Criminal Appeal E012 of 2022) {2013} KHEC 22910 KLR*** to support his point. He urged the court to allow the appeal and quash the conviction and sentence. 8. The Respondent opposed the Appeal. He filed written submissions which they relied on. He submitted that all ingredients of the offences in Count I and Count II were duly established to the required standard and urged the court to dismissed the appeal. On the issue of age, it was submitted that the Child Health Card (P Exh 3) placed the complainant’s age at 14 years at the time the offence was committed and hence the element was duly proved. On the issue of penetration, it was argued that the complainant narrated how the accused had sexual intercourse with him which evidence was corroborated by PW1 as well as P Exb. 1,2 and 4. On identification, it was submitted that the complainant clearly identified the accused whom he knew to hail from Viwanjani. That he confirmed that the accused defiled him twice hence there was no doubt as to their identity. 9. Regarding Count II, the Respondent argued that there was sufficient evidence to prove the offence and hence both accused were properly convicted. He urged the court to dismiss the appeal. **Analysis and determination** 1. This being the first appeal, this court is duty bound to re-evaluate and examine the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See ***Okeno Vs Republic [1972] EA 32*** and ***Oiruri Mose Vs Republic (2013) eKLR*.** The court of appeal, in ***Kiilu & Another V Republic [2005]1 KLR 174***, stated thus; “*An Appellant on a first appeal 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 a 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 draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”* 1. Having looked at the trial court proceedings, together with the submissions on record, the court finds that the issue for determination is whether the respondent proved the offence of gang defilement beyond reasonable doubt for Count I and whether the respondent proved the offence of threatening to kill beyond reasonable doubt in Count II. 2. With regard to Count I, Section 10 of the *Sexual Offences Act* provides thus as pertains gang defilement: *“Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less fifteen years but which may be enhanced to imprisonment for life.”* 1. Consequently, when one commits either rape or defilement in association with another or in association with others, such person will be guilty of gang rape. Sexual penetration through the anus is covered under the definition of rape. 2. The offence of gang defilement requires four elements to be proved beyond reasonable doubt. These are *age of the minor/victim,* *penetration of the genitalia,* *the act being done by more than one person in turns and identity of the perpetrator*. A number of cases have defined what constitutes gang rape or defilement. In ***Aura Alias Pach V Republic (Criminal Appeal E053 of 2024) [2025] KEHC 4298 (KLR)****,* the court held; *“A number of decided court cases have addressed the definition of gang rape. As submitted by counsel for the Respondent on appeal herein, one of these cases is the case of Francis Matonda Ogeto versus Republic (2019) eKLR where the court stated inter alia as follows:-* *“ 25. Under Section 10 of the Sexual Offences Act, the ingredients of gang rape are rape or defilement under the Act; committed in association with others or committed in the company of another or others who commit the offence of rape or defilement with common intention. It is therefore clear that defilement which is committed in association with others or with common intention notwithstanding the fact that the accused may not have defiled the victim amounts to gang rape according to the said section. It therefore matters not whether the offence was rape or defilement as long as the conditions under Section 10 are found to exist.” The definition of ‘’gang’’ in section 2 of the Act means two or more persons. Under section 10 of the Act, the Respondent was under a duty to prove four elements of the offence which are inter alia; that there was commission of rape; that the rape was without consent; that the rape was in association with another person or others or any with common intention who commit the offence of rape; that there was positive identification of the perpetrator. The Act provides a scenario where the gang rape can occur where one or more persons engage in the sexual act upon the victim in turns or where one person engages in the act while another keeps watch as they have a common intention of committing the said offence.”* **Age of the minor/victim** 1. It is of utmost importance to prove the age of the victim in a case of defilement. In the case of ***Hadson Ali Mwachongo V Republic (2016) eKLR***, the court of appeal held that: *“The importance of proving the age of a 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.”* 1. The age of a victim of defilement may be proved in various ways. The court of appeal in ***Edwin Nyambogo Onsongo vs Republic (2016) EKLR*** stated: *“ ... 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.”* 1. PW2 the victim stated during *voire dire,* that he was 14 years old. This was confirmed by his mother, PW3 who said in his testimony, *“The complainant is my son. He is 14 years old”*. PW1 on the other hand produced the complainant’s Child Health Card as exhibit No. 3 which shows that the complainant was born on 19 September 2008 meaning the he was 14 years and 10 months at the time of commission of the offence. 2. The appellant in his submissions, contested exhibit 3 alleging that it was improperly adduced and should be rejected as it offends Section 77 of the *Evidence Act.* Section 77 of the *Evidence Act* provides; *“(1) In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.* *(2) The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it.* *(3) When any report is so used the court may, if it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist, as the case may be, and examine him as to the subject matter thereof.”* 1. In the court’s view, the said provision allows a medical practitioner to adduce as evidence any matter or thing submitted to him for analysis or examination. PW1 a medical practitioner from Kilifi County Hospital who produced the exhibit in question testified that the Child Health Card was submitted to him for examination, falling within the ambit of section 77 of the Act. 2. The record shows that the appellant who was represented by learned counsel Mr Birya during trial, did not oppose to the production of the exhibit. He also had an opportunity to cross examine PW1 and other prosecution witnesses on the authenticity or contents of the exhibit. The court finds that the exhibit 3 was properly produced by PW1 and forms part of the evidence on record. Even in the absence of the said evidence, the court is satisfied that the element of age was proved beyond reasonable doubt through the evidence of PW2 and PW3. **Proof of penetration** 1. On the element of penetration, PW2 the complainant explained in detail how that the two accused chased him to the bushes, got hold of him, removed his trouser, made him lie on his belly in the ground and had sex with him in the anus. Both accused and a third person raped him, that day. He stated that after they had finished, he wiped himself with tree leaves, went home showered and slept. He reiterated that both accused jointly defiled severally at different times. He recalled an incident where the appellant accosted him while he was watching videos (movies) took him to the toilet, closed his mouth and nose with a napkin and sodomised him. 2. In cross examination, PW2 said; ***“the two sodomised me twice. ….Mustafa did not do anything. It is David, Katana and Charles who sodomized me. They were three of them. The other time they sodomised me at the stage. The boda boda were not there”***. He went on to say, ***“They defiled me at different times”***. His testimony was corroborated by PW1 who testified examinations carried out of the victim revealed that he had pain in the anus which was found to have cuts and bruises at the anal opening as well as difficulty in walking. He produced the P3 form, treatment notes and the Post Rape Care form as exhibits to support his testimony. 3. DW4 testified that the 2nd Accused was a herder and used to go to the field to herd from morning to evening while DW3 testified that the appellant knows the 2nd Accused as well as the complainant and that he usually goes to the shopping center. This corroborates the complainant’s evidence, places appellant at the scene and removes any doubt on the matter. The appellant in his defence merely denied by saying it is all false without challenging or contesting the facts or evidence by the prosecution. The court finds that the evidence by the prosecution is consistent and cogent and without material contradictions. 4. From the evidence, the court finds that the offence occurred at different occasions in July and August 2023, with evidence clearly pointing out that the latest incident occurring on 29 August 2023. The court finds that the element of penetration was proved beyond reasonable doubt. **Identification of the perpetrator** 1. On the issue of identification, the complainant’s evidence was that he knew the appellant and the 2nd accused very well. He referred to them by name, knew where they lived in Viwanjani and had interreacted with them on numerous occasions. He stated that both of them jointly defiled him severally at different times and was able to take the police to the appellant house where he was arrested. PW3, DW3 and DW4 also confirmed that the complainant and the appellant were neighbors and well known to one another. The court is satisfied that the appellant was properly identified as the perpetrator by recognized. **Proof that the act was done by more than one person in turns** 1. The final element of the offence involves proof that act of defilement was done by more than one person in turns or with a common intention. The complainant testified that both accused jointly defiled him severally at different times. He recalled an incident where the two accused accosted him while he was watching videos (movies) took him to the toilet, closed his mouth and nose with a napkin and sodomised him. In another incident, he testified that the two accused chased him to the bushes where he fell down. He narrated how the appellant removed his trouser, made him lie on his belly in the ground and had sex with him in the anus. After finishing, the 2nd accused followed and then Katana. The court is satisfied that this element was proved beyond reasonable doubt. 2. The appellant, in his third ground of appeal, argued that the charge sheet was defective due to the variance between the evidence on record and the date of the offence making it prejudicial to the Appellant and in violation of his right to fair trial under Article 50 (2) (b) of the *Constitution* as read with Section 134 of the *Criminal Procedure Code.* 3. Article 50 (2) (b) of the *Constitution* provides that every accused person has the right to a fair trial, which includes the right to be informed of the charge with sufficient detail to answer it. Section 134 of the *Criminal Procedure Code* on the other hand, provides as follows regarding framing of charge sheets; *“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”* 1. Section 137 (f) of the said Act, provides as follows on the ggeneral rule as to description; *“subject to any other provisions of this section, it shall be sufficient to describe a place, time, thing, matter, act or omission to which it is necessary to refer in a charge or information in ordinary language so as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to.”* 1. The form and substance of a charge sheet is provided by law. Consequently, in order to determine if a charge sheet is defective, a court must consider the defect in a charge from a two-step test. First is *to* ***determine whether the charge is defective*** and if so, ***whether such defect can be remedied*.** The court of appeal in ***Peter Ngure Mwangi V Republic [2014] eKLR*** stated thus: *“On the issue of a defective charge sheet, there are two limbs to it. The first one deals with the issue as to whether the charge sheet is indeed defective, whereas the second one deals with the issue as to whether even if a charge sheet is defective, that defect is curable or not.”* 1. In can be deduced from the above that not all defects in a charge sheet are fatal. In ***Bernard Ombuna vs Republic [2019] eKLR***, the court of appeal gave guidance on how to determine whether a defect in a charge is fatal as follows: *“In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.”* 1. Having set out the law above and the effect thereof, this court will consider whether the charge sheet is defective. The appellant’s main contention is that the evidence on record, which in his view was contradictory as to when the offence occurred, was at variance with the particulars of the offence in the charge sheet on the date of the offence, rendering it ambiguous and thus prejudicial. 2. To the court’s mind, the appellant’s challenge is not related to the framing of the charges or any ambiguity as to the statement or particulars thereof but rather that the evidence did not prove that the offence was committed as alleged. That does not point to any defect in the charges as drafted but rather it amounts to a contestation of whether evidence adduced support the charge. These are two distinct issues. The charge sheet clearly stated that the offence was committed in July and August 2023. There was no ambiguity on the date of the offence and the court finds that the charge sheet was not defective as alleged or at all. 3. The upshot is that the court finds that all ingredients of the offence of gang rape were proved beyond reasonable doubt. 4. As regards Count II, Section 223 of the *Penal Code* provides as follows on the offence of threats to kill; *“Any person who without lawful excuse utters, or directly or indirectly causes any person to receive, a threat, whether in writing or not, to kill any person is guilty of a felony and is liable to imprisonment for ten years.”* 1. In order to prove the offence, the prosecution must prove three ingredients; utterance or conveyance of the threat, content is a threat to kill and the absence of a lawful excuse.In ***Okutto V Republic (Criminal Appeal E016 of 2024) [2024] KEHC 10044 (KLR)*** the court held; *“The prosecution was required to establish the following ingredients of the charge: that the Appellant without lawful excuse uttered words which amounted to a threat to kill the complainant. The uttering of these words must be made in the context that the complainant perceives that she is under threat of losing her life. The context must come out in the evidence that will be adduced by the prosecution witnesses and the explanation given by the accused in his defence.”* 1. PW2 the complainant testified regarding the accused as follows, ***“They told me if I go to the chief, they would ensure they stab me to death.”*** In cross examination, the complainant further stated, ***“Katana beat me and said he would kill me if I talk to the police. Mustafa did not do anything. Its David, Katana and Charles who sodomised me. They were three of them.”***He reiterated, ***“David told me he would stab me.”*** 2. The evidence shows that the appellant verbally threatened to kill the complainant if he reported. This was followed by an actual assault on the person of the complainant giving credence to the threats. The conduct of the appellant and his accomplices caused actual fear, alarm and the perception to the complainant that he was in danger if he didn’t comply. The appellant did not dispute or challenge these facts in his defence but simply gave a general denial. The court concludes that the circumstances of the case reveal that the appellant intended to cause fear or alarm to the complainant. 3. It is also clear that the threat was made illegally and without any lawful cause or authority as no reasonable excuse was laid before the court to justify the actions. The court is satisfied that the prosecution proved the each and every ingredient of the offence beyond reasonable doubt. **Sentencing** 1. Turning on the sentence, the appellant was sentenced to 10 years imprisonment for Count I whereas Section 10 of the *Sexual Offences Act* sets the minimum mandatory period of imprisonment to be 15 years and a maximum period of life imprisonment. The Supreme Court of Kenya in***Petition E018 of 2023, Republic Vs Joshua Gichuki Mwangi*** held that the minimum sentences set out in the *Sexual Offences Act* are lawful and must be observed. 2. The Sentencing Policy Guidelines provide that where the law provides mandatory minimum sentences, the court is bound by those provisions and must not impose a sentence lower than what is prescribed. It is thus apparent that the sentence imposed by the trial court is below the minimum sentence set out by law making it illegal. 3. Section 354 (3) of the *Criminal Procedure Code* empowers the High Court to vary any sentence on appeal. However, there was no notice of enhancement of sentence issued to the appellant. Neither was a cross appeal filed the Respondent in this case. The court of appeal in ***Samwel Mbugua Kihwanga v Republic*** ***[2016] KECA 281 (KLR)*** observed as follows: *“…the obligation on an appellate court to fore- warn or caution an appellant before enhancing a sentence imposed against him by a trial court is not anchored on any law but in practice that has now gained such notoriety that it is proper that an appellant be warned of the consequences of proceeding with his appeal in circumstances where so proceeding may likely result in the sentence being enhanced to his disadvantage. It is simply to enable him weigh the options available and then make a decision that suits his best interests, especially in circumstances where, like in the instant appeal, an appellant is disadvantaged for not being schooled both in the law and legal procedures he may be confronted with during the course of the trial of his appeal.”* 1. The appellant was not fore-warned about the possibility of enhancement of the sentence to enable his make an informed decision as well as afford him an opportunity to be heard. This deprived him an opportunity to decide whether or not he wished to proceed with the appeal or abandon it. Enhancing the sentence without notice as aforesaid would violate the appellant’s right to fair trial under Article 50 of the *Constitution*. 2. In light of the above, the court makes the following orders: - 1. The appeal against conviction and sentence in respect of Counts 1 and 2 lacks merit and is accordingly dismissed. 2. The conviction and sentence by the trial court is upheld 3. It is so ordered. **Dated, Signed and Delivered Virtually at Nairobi on this 18th day of June 2026** **JOSEPH KIPKOECH BIOMDO** **JUDGE**