https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8202

Owino v Republic (Criminal Appeal E005 of 2025) [2026] KEHC 8202 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 8202 (KLR) Republic of Kenya In the High Court at Siaya Criminal Appeal E005 of 2025 DK Kemei, J June 12, 2026 Between Felix Otieno Owino Appellant and Republic Respondent (Being an appeal against both conviction and sentence of Hon. Benjamin Limo (PM) dated 27/1/2025 in Siaya CM’s Sexual Offence Case No. E006 of 2024) Judgment 1.The appeal herein arises from the judgment of Hon. B. Limo (PM) in Siaya CRC No. S. O E006 of 2024 wherein the Appellant was convicted and sentenced to serve fifteen years’ imprisonment over the main charge of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act No. 3 of 2006 which was to commence from the date of his arrest. 2.Aggrieved by the said conviction and sentence, the Appellant lodged a petition of appeal wherein he raised seven grounds of appeal which have been summarized as follows:i.That he was charged, convicted and sentenced to serve thirty year’s (30) imprisonment for the offence of defilement in two counts and the sentence were pronounced to run concurrently in CRC No. S.O E006 of 2024.ii.That the trial magistrate grossly erred in both law and fact to contravene my fundamental rights and freedoms under article 50(2) (b) and (j) of the constitution.iii.That the trial court misapprehended itself to invoke section 135 (3) of the Criminal Procedure Code during the process of trial thus the charges appeared to be duplex in law and that the same violates section 307 of the CPC.iv.That both prosecution and trial court vividly erred in both law and fact to overlook section 333(a) i, ii and b. 36(1) and (7) of the Sexual Offences Act no. 3 of 2006 under forensic examination for justice to stand.v.That the trial magistrate grossly erred in both law and fact by failing in procedure to enforce section 169 (2) of the Criminal Procedure Code during the time of delivering judgement and sentence.vi.That his rights and fundamental freedoms were highly detrimental to the administration of justice to be charged with two sections of one ‘ACT’ of parliament thus causes prejudice and miscarriage of justice and that the same cannot be cured under section 382 of the CPC.vii.That his defence was cogent and unshaken by the prosecution bench but which was dismissed by the trial court which maintained that the case had been proved beyond the required standard.Reason whereof the Appellant prayed that the conviction be quashed and sentence set aside and he be set at liberty. 3.Being a first-time appeal, the Court’s duty is to consider the evidence presented to the trial Court with caution that it neither heard nor saw the witnesses. In Okeno – VS – Republic (1972) EA 32, it was held that;“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.’’ 4.The brief summary of the record is that the Appellant pleaded not guilty to all the charges in the main and alternative. The particulars of the main charge were that on 10/12/2023 at [Particulars Withheld] sub location in Siaya District within Siaya County, intentionally caused his penis to penetrate the vagina of SAO, a child aged 16 years. The particulars on the alternative count were that on 10/12/2023 at [Particulars Withheld] sub location in Siaya District within Siaya County, intentionally touched the vagina and anus of SAO a child aged 16 years with his penis. The Appellant denied the charges and that the case went to full trial in which the prosecution called four (4) witnesses while the Appellant called one witness in defence. 5.It was the evidence of the complainant, SAO (PW1) that she was at home on the material date when the Appellant called her to go to his house and collect some money for some items which the Appellant required from the complainant’s family shop. That she complied and while inside the Appellant’s house, he defiled her against her wish and that the Appellant inserted his penis into her vagina and anus and that she bled. That the Appellant had threatened her with a knife. That the Appellant directed her to take a shower which she declined and that he later arranged for a boda boda to take her home. That she later informed one of the church members about the incident and that the following day she lodged a report with the police and was taken to hospital. She identified her birth certificate, P3 form. Lab request form and PRC form. 6.JOO (PW2) was the sister of the complainant. She stated that she was called to Siaya Referral hospital that her daughter had been defiled and that she later accompanied her daughter to the police where the complainant claimed that she knew the identity of her assailant. 7.Eunita Nyakundi (PW3) was the clinical officer at Siaya Referral Hospital. She produced the P3 form and PRC form, and birth certificate. That the complainant informed her that she had penetrative sexual intercourse with her boyfriend on the material date at around 12 noon. That the examination revealed inter alia; bruises on the labia minora, tenderness on palpitation, torn hymen, bruises at the oral orifice. That she formed the opinion that there was both vaginal and anal penetration. That the dates indicated on the document as 10/11/2023 should read 10/12/2023 as the error was made by her. 8.No. 25xx65 Pc Sharon Onyango (PW4) was the investigating officer. She stated that she took over the case from Pc Chepngetich. That she established that the minor had been called by the Appellant to his house where he defiled her by penetrating her vagina and anus. That the Appellant was later arrested and charged. On cross-examination, she stated that the Appellant and complainant had earlier met and exchanged phone numbers. That Gordon Odero recorded a statement but did not testify. 9.The trial court later ruled that the Appellant had a case to answer and was thus placed on his defence, He opted to tender a sworn testimony and call two witnesses. 10.Felix Otieno Owino (DW1) testified that he was arrested while at his place of work. That he did not know the complainant and that the charges were false. 11.The appeal was canvassed by way of written submissions. It is only the Appellant who complied. 12.The Appellant submitted that he had been charged with two similar counts plus an alternative charge and thus the charge was duplex thereby complicating his defence. That his rights under the constitution were violated as a result. He submitted that the trial court erred by charging the appellant with two counts of the same section in one act amounting to duplicity of charge. That convicting the appellant of two counts that happen at the same time to one person by the same accused was unjustified and wrong principle applied because vaginal and anal penetration on the same victim by the same accused at the same time is one transaction and cannot be interpreted as two different penetrations or two different counts. e.g. if an accused person injures a hand and a leg of the same person, the accused cannot be charged with two counts of causing harm i;e one of injuring the hand and another of the leg of the same person. Hence the trial court applied the wrong principles of law and the same prejudiced the appellant and calls for a retrial. That the appellant could not be able to defend himself properly as duplex charge did not grant him a fair trial as it was not able to give the appellant chance to defend himself appropriately as required by law. That the court did not realize that it was acting on a wrong principle which was prejudicial to the appellant hence occasioned unfair trial to the appellant. Reliance was placed in Article 50(2)(b)(k) of the constitution which requires that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing and that the accused be informed of the charge with sufficient detail to answer it in a manner that he can be able to adduce and challenge evidence. The Appellant therefore submitted that duplicity of charge calls for retrial and the appellant urge this court to find the charge sheet bad for duplicity and that the court to rely on the case of Mary Waithera Kamuiru & 3 Others Vs Rep. (2016) eKLR where the court held as follows; -“26What does the court do with a duplex charge, is it fatally defective as to lead to automatic acquittal of the appellants. Does the court order a retrial or does it order an acquittal" while considering a duplex charge in the case of offence of obtaining by false pretense, in Makupe Vs Republic, criminal appeal NO. 98 of 1983, the court of appeal at Mombasa on July, 18, 1984 (Kneller JA, Chesoni & Nyarangi Ag JJA) held that in general a retrial will be ordered when the original trial was illegal or defective and it will not be ordered where conviction is set aside because of insufficient evidence. The court must, in ordering a retrial, take the view that had the case been properly prosecuted and admissible evidence adduced, a conviction might fairly result. See Munyole Vs Republic, court of Appeal at Kisumu December, 5 1985(Hancox Nyarangi JJA & Gachuhi Ag JA) 1985 KLR 66227.The question for determination in this appeal, therefore becomes whether there is sufficient evidence to support the charge of robbery with violence against the appellant to warrant a retrial. The court will then consider, consistently with duty of the first, the appellate court under Okeno Vs Rep., Supra the available evidence to determine whether there is evidence that may support a conviction for robbery with violence, which is the expressed in the charge to have been preferred against the appellants.28.If the court consider that there is evidence upon which a conviction may result, then it will without prejudice to the findings of the trial court direct that a retrial be held; if it considers that there is no evidence to support the preferred charge of robbery with violence, an acquittal will be ordered on the basis of duplicity of the charge." 13.It was submitted that the appellant could not defend himself properly due to duplex charge and on which he was both convicted and this violated the appellant's right to fair hearing (Article 25(c)) hence the Hon. court to redress the issue by subjecting the appellant for a retrial or give appropriate relief that protects Article 25(c) of the constitution of Kenya, 2010. 14.I have given due consideration to the record of appeal and submissions presented. I find the issues for determination are firstly, whether the charge preferred against the Appellant was duplex and whether the same prejudiced him and secondly, whether the Respondent proved its case against the Appellant beyond any reasonable doubt. 15.The burden of proof in all criminal trials is upon the prosecution to prove and that the standard is one of beyond any reasonable doubt. See Woolmington Vs Dpp [1935] AC 462.It is noted that the Appellant faced two main counts of defilement contrary to section 8(1) as read with section 8(3) of the sexual Offences Act No. 3 of 2006.The particulars of the first count were that on 10th December 2023 at Mulaha sub location in Siaya District within Siaya County, intentionally caused his penis to penetrate the vagina of SAO, a child aged 16 years.The particulars of the second count were that on 10th December 2023 at Mulaha sub location in Siaya District within Siaya County, intentionally caused his penis to penetrate the anus of SAO, a child aged 16 years.The Appellant also faced an alternative count of committing an in decent act on a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006 with the particulars being that on 10th December 2023 at Mulaha sub location in Siaya District within Siaya County, intentionally touched the vagina and anus of SAO, a child aged 16 years with his penis.The Appellant has contended that the two main counts were duplex charges and that he was prejudiced as he could not properly conduct his defence in accordance with the law. That his rights under the constitution were violated as a result. He contended that the trial court erred by charging the appellant with two counts of the same section in one act amounting to duplicity of charge. That convicting the appellant of two counts that happen at the same time to one person by the same accused was unjustified and that a wrong principle was applied because vaginal and anal penetration on the same victim by the same accused at the same time is one transaction and cannot be interpreted as two different penetrations or two different counts. The Appellant maintains that the trial court applied the wrong principles of law and which prejudiced him and calls for a retrial. That the appellant could not be able to defend himself properly as duplex charge did not grant him a fair trial as it was not able to give the appellant chance to defend himself appropriately as required by law. That the court did not realize that it was acting on a wrong principle which was prejudicial to the appellant hence occasioned unfair trial to the appellant. Reliance was placed in Article 50(2)(b)(k) of the constitution which requires that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing and that the accused be informed of the charge with sufficient detail to answer it in a manner that he can be able to adduce and challenge evidence. The Appellant therefore submitted that duplicity of charge calls for retrial and the appellant urges this court to find the charge sheet bad for duplicity and that the court to rely on the case of Mary Waithera Kamuiru & 3 Others Vs Republic. (2016) eKLR where the court held as follows; -“26.What does the court do with a duplex charge, is it fatally defective as to lead to automatic acquittal of the appellants. Does the court order a retrial or does it order an acquittal" while considering a duplex charge in the case of offence of obtaining by false pretense, in Makupe Vs Republic, criminal appeal NO. 98 of 1983, the court of appeal at Mombasa on July, 18, 1984 (Kneller JA, Chesoni & Nyarangi Ag JJA) held that in general a retrial will be ordered when the original trial was illegal or defective and it will not be ordered where conviction is set aside because of insufficient evidence. The court must, in ordering a retrial, take the view that had the case been properly prosecuted and admissible evidence adduced, a conviction might fairly result. See Munyole Vs Republic, court of Appeal at Kisumu December, 5 1985(Hancox Nyarangi JJA & Gachuhi Ag JA) 1985 KLR 66227.The question for determination in this appeal, therefore becomes whether there is sufficient evidence to support the charge of robbery with violence against the appellant to warrant a retrial. The court will then consider, consistently with duty of the first, the appellate court under Okeno Vs Rep., Supra the available evidence to determine whether there is evidence that may support a conviction for robbery with violence, which is the expressed in the charge to have been preferred against the appellants.28.If the court consider that there is evidence upon which a conviction may result, then it will without prejudice to the findings of the trial court direct that a retrial be held; if it considers that there is no evidence to support the preferred charge of robbery with violence, an acquittal will be ordered on the basis of duplicity of the charge."I have perused the charge sheet and note that the second count was actually crossed with a blue pen leaving out the alternative charge. It seems that the trial court did not see the erasure and went ahead to read all the two main counts plus the alternative. It is noted that the judgement of the trial court captured the conviction on said two counts and that during sentencing, the Appellant was ordered to serve fifteen years’ imprisonment on each count and which were to run concurrently.Even though the Appellant faced the two counts instead of one, it is noted that the Appellant did participate in the trial and robustly cross-examined witnesses at length and also tendered his defence. I find that he did not suffer any prejudice as the error was curable under section 382 of the Criminal Procedure Code. I find that the Appellant’s conviction on both counts and the sentences running concurrently was akin to him being convicted to one count. Hence, no prejudice was visited upon the Appellant. I do not see the need for a retrial in the matter since this court will proceed to quash the conviction on both counts and allow only allow count one thereof so that the Appellant shall serve only the sentence imposed by the trial court. I find that this is not a fit case for a retrial and hence I decline the invitation by the Appellant. 16.The offence of defilement has three essential ingredients which must be proved by the prosecution before a conviction can be achieved. The said elements include; age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under section 8(1) of the sexual Offences Act No. 3 of 2006 and must each be proved for a conviction to ensue.“Section 8(1) of the Sexual Offences Act No. 3 of 2006 provides as follows: -(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.(5)It is a defence to a charge under this section if -a.it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; andb.the accused reasonably believed that the child was over the age of eighteen years.(6)The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.(7)Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’s Act.(8)The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees. 17.As regards the age of the victim, it is noted that the same is crucial in that the eventual sentence to be imposed upon conviction is dependent upon the age of the victim. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” (emphasis added). 18.Regarding proof of age, and as noted above it is noteworthy to state at the outset that the importance of proving the age of a victim in sexual offences is paramount considering that under the Sexual Offences Act, the prescribed sentence is determined by the age of the victim. 19.Section 2 of the Children’s Act defines a child as a person under the age of eighteen (18) years, there are various ways which can be used to prove a victim’s age as held in Mwalango Chichoro Mwajembe V Republic, Criminal Appeal No. 24 of 2015 (UR) where the court stated as follows:“……..the question of proof of age has finally been settled by a recent decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof” It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. (See Denis Kinywa -Vs- Republic Criminal Appeal No. 19 of 2014) and (Omar Ucher -Vs- Republic Criminal Appeal No. 11 of 2015). We doubt if the courts are possessed of requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decisions of the Court of Appeal of Uganda in Francis Omuroni -Vs- Uganda Criminal Appeal No. 2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable...” 20.In the present case, the prosecution discharged this burden through the birth certificate (Exhibit 1) produced by PW3, which established that the minor was born on 29/10/2007, making her age as sixteen years at the time of the incident. This was further corroborated by the Clinical Officer (PW3), satisfying the legal threshold. I find that the age of the minor was proved beyond reasonable doubt. 21.As regards the aspect of penetration, Section 2 of the Sexual offences Act No. 3 of 2006 defines "penetration" as the partial or complete insertion of the genital organs of a person into the genital organs of another person. Penetration is proved through the evidence of the victim. The testimony of the victim in this case coupled with evidence from other witnesses was sufficient to determine whether penetration occurred. 22.Section 124 of the Evidence Act, Cap 80 provides as follows:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 23.In the case of Bassita vs. Uganda S.C. Criminal Appeal No. 35 of 1995, the Supreme Court of Uganda had the following to say in respect of proving penetration: -“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.” 24.In the present case, PW1 gave a graphic account of the Appellant inserting his genitalia into hers, which was corroborated by PW3’s medical findings such as bruises on the labia minora and a torn hymen. That there was vaginal and anal penetration. The clinical officer produced the birth certificate, P3 form, PRC form and lab request and report form as exhibits. 25.The Appellant’s defense that he did not know the complainant was not convincing as he was positively identified by the complainant who knew him quite well is diminished by the medical evidence; as held in Seme v Republic [2008] eKLR, that a mere denial cannot overturn positive medical findings corroborating the commission of the offense. 26.Kenyan courts have repeatedly held that a child’s testimony on penetration need not be scientifically perfect so long as it conveys the fact of intrusion. In Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal stressed that a victim’s account of how the male genitalia came into contact with her genitalia is sufficient to prove penetration. 27.In this case, the ingredient of penetration, the prosecution relied on the sworn testimony of the minor describing the insertion of a penis into her vagina and anus which was corroborated by the medical evidence of PW3. The Clinical Officer noted bruises on the labia minora as well as a torn hymen and concluded that there was both vaginal and anal penetration. This aligns with the definition of penetration under Section 2 of the Sexual Offences Act, which requires even the slightest partial insertion. This principle was reinforced in Mark Oiruri Mose v Republic, Criminal Appeal No. 295 of 2006, where the Court of Appeal at Kisumu held that the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence, and such penetration need not be complete or rupturing the hymen. 28.Furthermore, Kenyan jurisprudence makes clear that medical evidence is not indispensable where the complainant’s testimony is credible, but in this case it is overwhelmingly present and supportive. In Fappyton Mutuku Ngui v Republic [2012] eKLR and Geo Philip Muthuka v Republic [2015] eKLR, the courts held that penetration may be proved through either direct testimony or circumstantial indicators such as genital injuries. Here, the clinical findings are direct, immediate, and consistent with recent sexual intrusion. The defence offered no expert evidence to challenge these findings. As such, the trial court correctly held that the element of penetration was proved beyond reasonable doubt. Hence, I find the second ingredient namely penetration was adequately proved based on the victim’s evidence and the medical evidence. 29.As regards the issue of identification/participation of the Appellant, the same was firm, consistent, and free from any possibility of mistake. The complainant knew the Appellant prior to the incident and positively recognized him as a neighbour. This was therefore a case of recognition rather than identification of a stranger, which Kenyan courts have consistently held to be the most reliable form of identification. In Anjononi & others v Republic [1980] eKLR, the Court of Appeal held that recognition is “more reliable than identification of a stranger because it is based on the witness’s prior knowledge of the assailant.” The complainant’s evidence was direct, unwavering, and supported by the circumstances of close physical proximity during the commission of the offence, which left no room for doubt. 30.The environmental circumstances also favoured accurate identification. The incident occurred in a setting where the complainant had sufficient opportunity to see and recognize the Appellant as the incident took place in broad daylight. The Court of Appeal in Wamunga v Republic [1989] eKLR emphasized that courts must evaluate lighting, distance, and duration of encounter when assessing identification. Here, the interaction was prolonged, intimate, and involved direct contact, making misidentification practically impossible. The complainant’s emotional distress immediately after the incident further supports the reliability of her identification as she described the perpetrator by name to a church member one Gordon and PW2 without hesitation and later to her mother (PW2). 31.Finally, on identification, the complainant recognized the Appellant as a close neighbour living nearby. Jurisprudence establishes that recognition is more reliable than identification of a stranger (Anjononi v Republic [1980] eKLR). The trial court correctly analyzed the defense and found it unbelievable. Indeed, I find that it was highly unlikely that the mother of the victim would use her young and vulnerable daughter as a victim of defilement just to fix the Appellant who was their neighbour yet they had no differences. The identification was thus safe, and the defense was rightly rejected as a diversionary tactic. 32.In the landmark case of R v Turnbull & Others [1977] QB 224, the court established guidelines for identification evidence, stating that recognition of a known person carries more weight than the identification of a stranger. Although the Appellant raised an alibi defence, the trial court was justified in rejecting it because he admitted being within the same neighbourhood when he claimed that he was at his house on the material date with his wife, and in Uganda v Wabwire Benson, HCT-09-CSC-0259-2016, it was held that a defence of alibi cannot stand where the accused is positively placed at the scene by the prosecution evidence. 33.Furthermore, the Appellant’s own conduct reinforced the prosecution’s case on identification. His presence at his home on the material date, his inconsistent explanations, and the absence of any credible contrary account undermine the defense and strengthen the recognition evidence. Courts have held that where recognition is supported by the conduct of the accused and surrounding circumstances, the evidence is exceptionally strong. In Simiyu & Another v Republic [2005] eKLR, the Court of Appeal held that prompt and consistent reporting of the assailant’s identity enhances evidential reliability. In this case, the complainant reported the Appellant’s name immediately and that PW1 and PW2 confirmed the consistency of her report, and that no evidence exists of animosity or mistaken identity. The identification was therefore accurate, reliable, and proved beyond reasonable doubt. The ingredient of identification was therefore sufficiently proved, going by the above evidence, it is clear that the cumulative and conjunctive elements in a charge of defilement all proved and the evidence was consistent and corroborative hence sufficient to convict the Appellant for the offence. It is highly unlikely for the parents of the victim to use their young and vulnerable daughter as a victim of a sexual act so as to settle scores with the Appellant yet there was no evidence of animosity between them. Hence, the finding on conviction by the learned trial magistrate was quite sound and must be upheld. 34.It is noted that the trial court convicted the Appellant on the first and second count. However, as noted earlier on this judgement, the charge was duplex and that it was improper for the trial court to have charged the Appellant with counts one and two and that it should only have charged the Appellant on count one and the alternative count and to abandon count two. To that extent, the Appellant’s appeal on conviction succeeds and that the conviction on the second count was arrived in error and must be quashed. However, the Appellant’s appeal on count one lacked merit and that the conviction was properly arrived at by the trial court. 35.On whether the sentence imposed upon the Appellant was appropriate, the statutory prescription and judicial discretion, the trial court imposed a sentence of fifteen years’ imprisonment pursuant to Section 8(4) of the Sexual Offences Act, which prescribes this penalty for the defilement of a child aged between sixteen and eighteen years. While the Supreme Court in Francis Karioko Muruatetu & Another v Republic [2017] eKLR declared mandatory minimum sentences unconstitutional, it affirmed that courts must consider the gravity of the offense and the specific circumstances before sentencing. 36.In Jared Koita Injiri v Republic [2019] eKLR, the Court of Appeal upheld a life sentence for defilement of a minor, noting that despite the discretion granted by Muruatetu, the severity of the crime against a child of tender years justifies the harshest penalty. The trial magistrate exercised this discretion judicially by imposing the sentence of 15 years’ imprisonment, noting the mandatory nature of the provision and the need to deter such conduct. 37.In the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus as regards interference with sentence: -“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”The Court of Appeal in Bernard Kimani Gacheru vs. Republic [2002] eKLR restated that:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.” (Emphasis added) 38.As regards aggravating factors and breach of trust, the sentence was just given due to the presence of significant aggravating factors. The victim was 16 years old, a child of between 16 and 18 years years who required protection rather than predation. The complainant was still a student in secondary school. Furthermore, the Appellant was a close neighbour who was married with a wife and thus he occupied a position of trust and authority over the complainant. 39.In Mumbai v Republic [2014] eKLR, the court emphasized that breach of trust is a serious aggravating factor. The Appellant abused this trust by not only defiling the minor but also attempting to silence her with threats, which speaks to his moral blameworthiness. 40.As regards proportionality and protection of the public, the sentence of fifteen years’ imprisonment is proportionate to the offense and serves the interests of justice. The victim suffered trauma and that the medical evidence confirmed physical injury (laceration on labia minora and torn hymen) to a 16-year-old. Courts have consistently held that sentences in sexual offenses must reflect the societal outrage and the need to protect vulnerable children from sexual predators. Given the Appellant's lack of remorse and his attempt to dismiss the proceedings as a "grudge," the fifteen years’ sentence ensures the protection of the public and serves as a deterrence, aligning with the principles of sentencing set out in the Criminal Procedure Code. Further, the conduct of the Appellant who was at the time a married man with children must be deprecated. Again, the Supreme Court in Republic Vs Joshua Gichuki Mwangi & Others Petition No. 18 of 2023, it was held that the minimum sentences provided for in the Sexual Offences Act remain lawful until the statute is declared unconstitutional. Hence, as matters stand, the sentence of fifteen years’ imprisonment is the appropriate sentence which was imposed by the trial court. Iam therefore not inclined to interfere with the sentence imposed by the trial court as the same is the minimum possible in law and was warranted in the circumstances. 41.In the result, it is my finding that the Appellant’s appeal on conviction partially succeeds and that the conviction on count one lacks merit and is dismissed but the appeal on the second count succeeds and that the said second count is hereby quashed. The appeal on sentence partially succeeds to the extent that the order that the sentence of 15 years imprisonment was to run concurrently is set aside and substituted with a sentence of fifteen years only on count one which shall commence from the date of arrest namely 9/1/2024. DATED AND DELIVERED AT SIAYA THIS 12TH DAY OF JUNE 2026.D. KEMEIJUDGEIn the presence of:Felix Otieno Owino...............AppellantSoita...............................for RespondentMaurine.........................Court Assistant