https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12562

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **KISII HIGH COURT** **HCCRA NO. E004 OF 2026** **DENNIS OKARI...................................................APPELLANT** **VS** **THE REPUBLIC.................................................RESPONDENT** **(*Being an appeal from the Conviction and Sentence in Ogembo Criminal Case Number CMCSO E108 of 2024 delivered on 18th June 2025 by Hon. PC Biwott CM in the Chief Magistrate’s Court at Ogembo*)** **JUDGMENT** **Introduction** 1. The Appellant, **Dennis Okari Kaunda** alias **Msani** was on **18th June 2024** convicted of the offence of defilement contrary to *Section 8 (1)* asread with *Section 8 (4) of the Sexual Offences Act (SOA)* in Ogembo Chief Magistrate Sexual Offence Case No. E108 of 2024. The Particulars of the offence are that on diverse dates between **January 2023** and **26th June 2024** at Sugubo Sub Location, Nyacheki Location in Nyamache Sub County, within Kisii County intentionally and unlawfully did cause his penis to penetrate the vagina of **F.M**, a child aged 16 years old. He was charged with an alternative charge of committing an indecent act with a child contrary to *Section 11(1) of the Sexual Offences Act (SOA)*. Following a full hearing the Appellant was convicted and sentenced to serve 15 years imprisonment. 2. Dissatisfied by both the conviction and sentence, the Appellant first sought leave to appeal out of time, leave which was granted by Hon. Lady Justice T. O Achieng on **24th February 2026** in *KISII HCCRA No. E002 of 2026*. The Appellant subsequently lodged a Petition of Appeal and in his Nine grounds of appeal, contends that the trial court erred in law and facts by requiring the Appellant to establish his innocence, as opposed to presuming his innocence until otherwise is proved by the prosecution 3. That further, the prosecution failed to sufficiently prove the essential elements of defilement beyond a reasonable doubt threshold, particularly on its findings on the pregnancy and penetration. That the trial court failed to appreciate the Appellant's oral submissions, again resulting in a wrong conclusion. Lastly the Appellant contends that the trial court misapplied the law to the evidence, and resultantly meting out an excessive sentence. Finally, the Appellant argues that the trial court erred in law by failing to appreciate the applicable law against the material evidence on record, none of which supported the judgment, and that the consequential sentence was harsh and excessive.The Appellant urged this Court to allow the Appeal, set aside the judgment and its consequential orders, the appellant equally prayed for costs of this appeal including any other order the court may deem fit and just to the court. 4. On **21st May 2026** parties took directions on hearing of the Appeal, parties elected to have the appeal canvassed by way of written submissions, the Appellant confirmed that they had filed the record of appeal and written submissions dated **31st March 2026**. The Respondent undertook to file and serve their written submissions on or before **30th May 2026,** an undertaking they breached, as such the Respondent’s failed to file their submissions in opposition of the appeal. 5. This court sitting as a first appellate court has to recap and appreciate the evidence adduced at the trial court. **Prosecution Case** 1. In support of its case, the prosecution called 4 witnesses at the trial court. **PW1,** the Complainant's mother, testified that on **23rd October 2024** at around 9:00 am she received a call from a teacher from her daughter’s school informing her that the complainant was pregnant. At a meeting at the Head Teacher's office, the Complainant named the Appellant as the one responsible for the pregnancy, and the Appellant, upon being summoned by the Deputy Principal, admitted responsibility for the pregnancy but proposed abortion, for which he was rebuked wherein she was advised to take care of the minor and the conceived baby. She reported the matter to the police, who arrested the Appellant, a Boda boda rider known to her and to the complainant from the stage where the Complainant used to board motorbikes to school. She produced the Complainant's birth certificate, confirming she was 16 years old, and identified the Appellant in the dock. She was not cross-examined by the Accused. 2. **PW2, the Complainant who was** 17 years old then and in Form three, testified after the court satisfied itself of her competence through a *voire dire* examination. She stated that she and the Appellant became friends and later lovers between **January 2023** and **June 2024**, and that they began having sexual relations at the Appellant's place, with their last sexual encounter on **26th June 2024.** She began missing her periods thereafter, and that the Appellant admitted responsibility for the pregnancy. Her mother was informed of her pregnancy through the Head Teacher, and the Complainant herself disclosed the Appellant's identity. The Appellant's parents were informed and agreed to pay her school fees and support the child, but the matter was subsequently reported to the chief, who arrested the Appellant, and later taken to the Police Station, where she was taken for examination, including an HIV test. She maintained that the Appellant was the only man she had known sexually and by whom she had conceived. During cross-examination by the Appellant, she confirmed that her mother had picked her up from school, that both families discussed her fees and childcare, and that their last sexual encounter was on **26th June 2024**. She denied framing the Appellant over a motorbike purchase. 3. **PW3, Hezron Oseko**, a Clinical Officer at Nyacheki Hospital with ten years' experience, testified that he examined the Complainant, then aged 16, on **13th December 2024**, and confirmed through laboratory investigation that she was 24 weeks, approximately six months pregnant, with no syphilis and normal urinalysis. He also examined the Appellant aged 21 then, on the same date and found him free of any revealed disease, and signed the Appellant's P3 form as well. He produced the Complainant P3 form and Treatment notes as Exhibit 2 & 3 respectively, and stated that neither the Complainant nor the Appellant had any sexually transmitted infection. In cross-examination, he stated that he relied on the history given to him in attending to the complainant, that laboratory tests confirmed the six months’ pregnancy, and that his role was confined to hospital-based examination. 4. **PW4, PC Lorine Atieno**, the Investigating Officer at Nyangusu Police Station, testified that the matter was reported on **27th October 2024**. Upon interrogating the Complainant and her mother, she established that the Complainant, then 16 and in Form Two, had met the Appellant, that they had exchanged phone numbers and declared love for one another, that the Complainant visited the Appellant and had unprotected sex with him in June 2024, and that she was thereafter found to be pregnant. She traced and arrested the Appellant and produced the Complainant's birth certificate as Exhibit 1, identifying the Appellant in the dock. She stated the Appellant was arrested on **11th December 2024.** In cross-examination, she confirmed that the area chief had effected the arrest without recording a statement, and that she relied on the history given to her, the hospital findings, and her own interrogations in the investigation. 5. At the close of the prosecution case, the trial court found a *prima facie* case established by the prosecution and called upon the Appellant to answer the case. **Defence Case** 1. The Appellant, **Dennis Okari Kaunda** denied defiling the Complainant and stated that between **January 2023** and **26th June 2024** he was not living with her, as he was at home caring for his ailing mother. He explained that the Complainant's brother had sold him a motorbike for Kshs. 35,000, of which he paid Kshs. 20,000, leaving a balance of Kshs. 15,000, and that he defaulted on the balance upon learning his mother was sick. He stated he had hired another rider to operate the motorbike, and that on returning it in needed repairs, the Complainant's brother, aggrieved framed him for defilement. He called no witnesses in his defence. 2. Subsequently, the trial court found that age of the minor, penetration and the identity of the Appellant had been established and proved beyond a reasonable doubt. The Defence raised was dismissed for being a farfetched excuse. The trial Court proceeded to convict the Appellant under *Section 215 of the Criminal Procedure Code.* **The trial court in consideration of the Appellants mitigation, being a first offender and seeking a lenient sentence, he was sentenced to serve 15 years imprisonment and a right of appeal within 14 days.** **Appellant's Submissions** 1. The Appellant identified two issues for determination: whether the Appellant’s rights to fair trial were violated and whether the judgment and or conviction ought to be set aside. The Appellant's central submission is that his right to a fair trial was violated, having appeared in person before the trial Magistrate, he was never informed of his right to legal representation. This is grounded in *Article 50(2)(g) of the Constitution* and *Section 43(1)(a) of the Legal Aid Act*, which obliges a court to promptly inform an unrepresented accused of that right. In support, counsel relies on **Atolwa alias Boi v Republic (ODPP) (Criminal Case E052 of 2024) [2026] KEHC 1289 (KLR),** where the court found that a failure to indicate on record whether an accused was informed of the right to legal representation, particularly where the charge attracted a mandatory minimum and severe sentence, vitiated the entire trial and warranted a declaration of mistrial. The Appellant also cites **KO v Republic [2023] KEHC 18310 (KLR),** where the Court held that prejudice to the accused is not a precondition for finding such a violation. On this basis, the submissions conclude that the right to fair trial was indeed violated. 2. The Appellant proceeds to submit on the second issue on a without prejudice basis to the first issue, the Appellant argues that the conviction ought to be set aside because the trial court misdirected itself in relying on the prosecution's testimony without resolving crucial questions of timelines and paternity. Specifically, the Appellant points out that the alleged sexual encounter was on **26th** **June 2024**, yet the medical examinations of both the complainant and the Appellant was undertaken on **13th December 2024**, six months later, with PW3 confirming pregnancy but producing no evidence linking the Appellant to the pregnancy or to the alleged act. Appellant further submits that PW4's testimony on how she established that the Appellant and the complainant had unprotected sex was unsubstantiated, since she is not a medical expert, yet the trial court relied on it and went further to hold that laboratory tests confirmed unprotected sex, a finding the Appellant says was never supported by evidence on record. The submissions also fault the trial court for dismissing, without basis, the issue of a possible revenge motive on the part of the Complainant's brother. On the ingredients of defilement, counsel concedes that age and identification were proved, but maintains that penetration was not proved beyond reasonable doubt. 3. In conclusion and citing **Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR** on the first appellate court's duty to re-evaluate, re-assess, and re-analyse the record, Appellant urges the Court to find that the Appellant has established a prima facie case meriting the orders sought: that the Appeal be allowed, the trial court's Judgment set aside, and the Appellant acquitted and released from custody unless otherwise lawfully held. **Respondent's Submissions** 1. The Respondent did not file any submissions. **Analysis and Determination.** 1. This being a first appeal the duty of the court is to analyze and re-evaluate afresh the evidence adduced before the trial court and draw its own independent conclusions. In the case of***Okeno v Republic* *[1972] EA 32,***East Africa Court of Appeal put this duty as follows: ***“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v R, [1957] EA 336) 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. (Shantilal M Ruwala v R, [1957] EA 570). 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, see Peters v Sunday Post, [1958] EA 424.”*** 1. I have extensively read the Appellants submissions, given due consideration to the trial court’s proceedings, the record of appeal and the Petition of Appeal. The following issues arise for my determination: - 1. *Whether the Appellant’s right to fair trial were threatened, denied, violated and/or infringed.* 2. *Whether the Prosecution proved its case beyond reasonable doubt.* 3. *Whether the sentence was harsh and excessive.* **Whether the Appellant’s right to fair trial were threatened, denied, violated and/or infringed.** 1. The Appellants submits that his rights to fair trial as enshrined under, ***Article 50(2) (g)*** of the ***Constitution*** were violated. The violation occurred by the failure of the trial court to inform the Appellant that he had a right to legal representation which includes right to an advocate of his choice. This submission is buttressed through *Section 43 (1)* of the *Legal Aid Act* which provides that a trial court shall promptly inform an accused person of his/her right to legal representation. This right is coupled with a pre assessment by the trial court. If the court is of the opinion that substantial injustice is likely to result, it will promptly inform the accused of the right to have an advocate assigned to him or her; and inform the National Legal Aid Service to provide legal aid to the accused person. 2. In brief, that is the basis of the Appellant’s submission on the unconstitutionality of the trial court proceedings. It is the Appellant’s submission that his right to fair trial was violated, he was unrepresented and he was not informed of his right to counsel. As such this court should void the proceedings as a nullity as held by ***Atolwa alias Bois v Republic (Supra).*** 3. This court notes that the Appellant in his submissions opted to consolidate the grounds which appeal is premised and submitted on the same as framed in his submissions. That said, we thus make reference to the Petition of Appeal dated **2nd March 2026**. It is apparently clear that the Appellant did not raise the ground on violation of his rights to fair trial. 4. *Section 350 (2)* of the *Criminal Procedure Code* provides that an appellant shall not be permitted, at the hearing of the appeal, to rely on a ground of appeal other than those set out in the petition of appeal: The appeal before this court is brought pursuant to *Section 350 CPC* as captured on the Petition of Appeal dated **2nd March 2026**. *Section 350 (2)(a) Criminal Procedure Code* provides as follows; ***“ A petition of appeal shall be signed, if the appellant is not represented by an advocate, by the appellant, and, if the appellant is represented by an advocate, by the advocate, and shall contain particulars of the matters of law or fact in regard to which the subordinate court appealed from is alleged to have erred, and shall specify an address at which notices or documents connected with the appeal may be served on the appellant or, as the case may be, on his advocate; and the appellant shall not be permitted, at the hearing of the appeal, to rely on a ground of appeal other than those set out in the petition of appeal”*** 1. From the foregoing, an Appellant is not allowed to introduce new grounds of appeal and the same shall not be permitted, in this case the Appellant ought to have sought leave with notice to the Respondent to amend the Petition of appeal and adduce new grounds of appeal. 2. Nevertheless, the trial court file has been transmitted to this Appellate Court which beside its Appellate jurisdiction it is vested with supervisory jurisdiction under ***Article 165 (6)***and***(7),*** this court exercises a supervisory authority over subordinate courts under ***Article 165(7)*** of the ***Constitution*** to **call for the record of proceedings before any subordinate court or person, body or authority and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.** 3. Consequently, this court will now evaluate whether the Appellant's constitutional right to a fair trial was fully respected during the lower court proceedings. 4. The Appellant submission is anchored on Article 50 (g) which provides that *Every accused person has the right to a fair trial, which includes the right to choose, and be represented by, an advocate, and to be informed of this right promptly.* An accused person has a right to appoint an advocate of choice. Further the Court shall appoint an advocate for an accused person if in the opinion of the court a substantial injustice would occur in absence of representation. 5. The record shows that the charges were read over and explained to the Appellant in English and translated to Kiswahili at the plea stage and on amendment of charges, the Appellant pleaded *ni uwongo* & not true in the two instances, following which a plea of not guilty was entered. The record confirms that both languages were indeed used in court. The Appellant was granted bail. On trial he cross-examined all the witnesses and, similarly, when placed on defence, he did so without any apparent difficulty. There is no indication as to whether the Appellant was informed of his right to representation. 6. Legal representation in criminal justice system in Kenya is very crucial, particularly when the offence is a capital offence and/or attracts a mandatory sentence. This is a practice that has been developed over time. However, *Article 50 (2) g and h* distinguishes the right to representation and the right to representation at the state expense. Every accused person is entitled to be promptly informed of this right, and if indigent the court has a duty to ensure a counsel is appointed as provided under the *Legal Aid Act*, which is subject to qualification. 7. The Court of Appeal in the case of **David Njoroge Macharia v Republic [2011] KECA 406 (KLR).** Interpreted *Article 50* on right to fair trial and representation as follows :- *“Art 50 of the Constitution sets out a right to a fair hearing, which includes the right of an accused person to have an advocate if it is in the interests of ensuring justice. This varies with the repealed law by ensuring that any accused person, regardless of the gravity of their crime may receive a court appointed lawyer if the situation requires it. Such cases may be those involving complex issues of fact or law; where the accused is unable to effectively conduct his or her own defence owing to disabilities or language difficulties or simply where the public interest requires that some form of legal aid be given to the accused because of the nature of the offence... Under the new Constitution, state funded legal representation is a right in certain instances. Article 50 (1) provides that an accused shall have an advocate assigned to him by the State and at state expense,* ***if substantial injustice would otherwise result*** *(emphasis added).”* 1. The Supreme Court in ***Republic v Chengo & 2 others [2017] KESC 15 (KLR)*** stated as follows: **“It is clear that with regard to criminal matters, in determining whether substantial injustice will be suffered, a Court ought to consider, in addition to the relevant provisions of the Legal Aid Act, various other factors which include:** **(i) the seriousness of the offence;** **(ii) the severity of the sentence;** **(iii) the ability of the accused person to pay for his own legal representation;** **(iv) whether the accused is a minor;** **(v) the literacy of the accused;** **(vi) the complexity of the charge against the accused;** 1. From the foregoing and the proceedings, the trial court did not record as to whether the Appellant was informed of his right to representation. Intrinsically, this court cannot ascertain as to whether the Appellant was informed, and if not, did the same amount to a substantial injustice? This Court observes that the Appellant is a 21-year old adult and a mechanical engineering student thus not a minor, illiterate, or otherwise incapable of comprehending the nature of the proceedings against him. The Appellant cross-examined the prosecution witnesses on particulars of the offence, timelines, and when called upon to give his defence, he coherently raised an *alibi*. The sequence and the totality of the surrounding circumstances does not connote any substantial injustice having been occasioned. In this case, nothing on the record suggests the Appellant was disadvantaged. He was not a minor, he was demonstrably literate and actively and competently participated at every stage of the trial and suffered no prejudice from proceeding without counsel on record, an option he chose not to exercise. 2. This court therefore finds no basis on the Appellant’s claim that his rights to a fair trial were violated. **Whether the Prosecution proved its case beyond reasonable doubt** 1. The Appellant was charged under with the offence of defilement as provided under *Section 8(1),* as read with *Section 8(4), of the Sexual Offences Act,* as follows: ***“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.*** ***(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.”*** 1. The Court of Appeal in in ***John Mutua Munyoki v Republic [2017] eKLR*** held that under the *Section (8) 1 Sexual Offences Act,* the main elements of the offence of defilement are that; the Complainant must be a minor, positive identification and there must be penetration of the genital organ and such penetration need not be complete or absolute partial penetration will suffice. 2. As to whether the Complainant is a minor. This has admitted by the Appellant. This court equally notes the Complainant was a minor born on **23rd August 2008** and at the time of the last encounter with the Appellant, she was **16 years of age**. The Complainant’s on ***voire dire*** testified that she was 17 years while rendering her testimony. Therefore; the age of the minor was sufficiently proved. 3. On positive identification and/or recognition of the perpetrator, the Complainant and the Appellant are friends and lovers, as the Complainant puts it. They met and had sex on several occasions at the Appellant’s place, the last one being **26th June 2024**. The Complainant identified the Appellant on the dock and the same was corroborated by PW1, PW3 & PW4. The Appellant was positively identified through recognition. 4. On penetration, the Complainant testified that the Appellant had sex with her. This evidence was corroborated by PW3 wherein he observed that the Complainant was 24 weeks Pregnant with a torn hymen. In support he produced the P3 form and Treatment notes. This Court notes that the Appellant denial and an alibi did not displace the consistent prosecution evidence linking the Appellant as the perpetrator of the Complainant. 5. Penetration is defined under *Section 2 of the Sexual Offences Act* as follows: ***“Penetration means the partial or complete insertion of the genital organs of a person into the genital organs of another person.”*** 1. The Complainant narrated that they have been dating and having sex at Dennis’ place. It was until she missed her periods, is when she realized that she was pregnant. The mother PW1 was called from school and informed that the Complainant is pregnant. The Complainant testifies that the Appellant admitted to the pregnancy, proposed an abortion and the families were in talks on how to handle school fees and child care. The P3 form shows there was penetration as her hymen was torn and she was 6 months pregnant. 2. The Appellant contests only the ingredient of penetration, and if it was done by him due to the prolonged timelines in this case, from the date of the alleged first encounter to the day of his arrest. The Appellant disputes the reliance on the sole evidence of PW2 to link him to the offence and the absence of the DNA results 3. On DNA evidence the Court of Appeal in ***Mbogo v Republic* [2025] KECA 374 [KLR],** stated as follows: ***“In our view, nothing would have been easier than for the prosecution to establish beyond reasonable doubt who the father of the child was and therefore arraign the perpetrator with proof of DNA. As we say this, we are aware that DNA is not a mandatory requirement to prove the ingredients of the offence under the Sexual Offences Act and we are not in any way saying that it must be done, but this was a case that had so many gaps and it is not a safe conviction.”*** 1. The Court in ***Mbogo v Republic* (Supra)** rendered itself on applicability of *Section 36 (1) of the Sexual Offences Act*. The Court of Appeal expressly illustrated as to when a DNA test should be done in order to prove the ingredients of a sexual offence. Foremost the DNA evidence is not mandatory but can only be called by the trial court if there exist serious gaps in evidence. Equally this is upon the prosecution to provide the same. Therefore, this court then should ask itself if there are any glaring gaps in evidence that would have warranted a DNA test. The answer is in the negative. The DNA test was not necessary to connect the Appellant to the offence, as what was in dispute was not the question as to who will be the father of the unborn child, but the inquiry was who defiled the Complainant. 2. The Court faced with a similar scenario in ***Williamson Sowa Mbwanga v Republic [2016] KECA 147 [KLR***] stated as follows; *”As regards the first ground of appeal, 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.”* 1. *Section 124 of the Evidence Act* allows the court to receive evidence of an alleged Complainant of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. *Section 124* provides as follows: ***“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged Complainant is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the Appellant shall not be liable to be convicted on such evidence unless it is corroborated by other material 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 Complainant of the offence, the court shall receive the evidence of the alleged Complainant and proceed to convict the Appellant person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged Complainant is telling the truth.” (Underlined for emphasis)*** 1. The Trial court upon ascertaining that the Complainant was intelligent enough as she recited the eight out of ten commandments correctly. She gave her testimony under oath. A trial court must be satisfied that the Complainant is telling the truth. In its judgment, the trial court was persuaded that the Complainant positively identified the Appellant through recognition and testified that they were having sex as of routine until she missed her periods. The trial court rightfully found that the Appellant’s defence that he was not around and he was taking care of a sick mother and also he was framed as farfetched. 2. In his defence, the Appellant opted to give an *alibi*. He also seemed to be concerned about the DNA test. He did not speak about his ‘lovers’ encounters with the Complainant since January 2023. The Appellant did not refute the allegation that he is a boda boda rider from the stage where the complainant used to board motorbikes to school. On reporting the incident, the same was reported promptly upon discovery. Notably, unsatisfactory delays in investigations and arrest may undermine credibility of the complaint. In this case the trial court found the Complainant to be a credible witness, and the pregnancy was discovered at school a clear indication that the Complainant was not willing to disclose it until was discovered. The Complainant equally testified that she had informed the Appellant who proposed for an abortion. The evidence points out to an illicit, exploitative, coercive relationship with the Appellant. Unfortunately, in this case, the circumstances in reporting the incident did not arise during the trial what was contended is the delay in arrest and arraignment. Additionally, the Complainant was mistaken that they were ‘lovers’ with the Appellant. Even if that was the case, it did not absolve the Appellant who was 21 years old then, a Medical Engineering student, he ought to have known better than to defile a form two school going child. 3. From the evaluation of the evidence, it is indeed clear that all the three ingredients of the offence of defilement were established to the required standard, and the finding of the trial court was based on credible and cogent evidence. Wherein the Appellant has simply denied his involvement, there was no error or inconsistency that was material enough to render the evidence adduced to be of no probative value. 4. This Court is hence satisfied that all the elements of defilement have been proved beyond reasonable doubt by the Prosecution. **Whether the sentence was harsh and excessive** 1. As to whether the sentence of 15 years’ imprisonment is harsh and excessive? The trial court before meting out the sentence called out the vice, considered the Appellants mitigation wherein he remorsefully prayed for leniency. The court further considered that the Appellant is a first offender, remorse and sentence him to serve a 15 years sentence. 2. *Section 8 (4) of the Sexual Offences Act* wherein it provides that ***A person who commits an offence of defilement with a child aged Sixteen and Eighteen years shall upon conviction be sentenced to 15 years’ imprisonment.*** 3. The *Sentencing Policy Guidelines 2023* outlines that a sentence meted out must be proportionate to the offending conduct meaning it must not be more or less than is merited in view of the gravity of the offence. This includes the intended impact of the offence as well as the responsibility of the offender. 4. On constitutionality of Mandatory Minimum sentences, the Supreme court in ***Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR)*** upheld that Mandatory sentences are applicable the Apex court held as follows *“We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence.”* 1. Based on this, the Court finds no basis to interfere with the trial court’s sentence. **Disposition** 1. Having carefully re-evaluated the evidence on record and the submissions by the parties, this Court is satisfied that the Prosecution proved the offence of defilement beyond reasonable doubt. 2. There is nothing on record to indicate that the trial court acted on wrong principles, considered irrelevant facts or failed to consider relevant facts, or imposed a sentence that was unlawful. Accordingly, the appeal against conviction and sentencing is hereby dismissed in its entirety with no orders as to costs. **JUDGMENT DELIVERED VIRTUALLY, SIGNED AND DATED AT NAIROBI THIS 30TH DAY OF JULY 2026** **ANNE M. OKUTOYI** **JUDGE** Judgment delivered in the presence of: **Ms. Osili for the** **Appellant .** **Dennis Okari Kaunda-Appellant in person from Kisii Main Prison.** **Mr. Muli for the State.** **Ms. Mokeira-Court Assistant.**