[2022] KEHC 1715 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CRIMINAL APPEAL NUMBER 72 OF 2019

FMG..............................................................................APPELLANT

VERSUS

REPUBLIC...............................................................................ODPP

(Being an appeal from the original conviction and sentence in Criminal Case No. 2492 of 2014 Republic vsFrancis Macharia Githukuin the Chief Magistrate’s Court at Molo by M.W Kagendo on 30th May, 2016)

J U D G M E N T

1. The Appellant was convicted of the offence of Defilement contrary to Section 8 (1) as read with Sub-section 8 (3) of the Sexual Offences Act No. 3 of 2006 and sentenced to twenty (20) years in prison.

2. The particulars of the charge were that on diverse days between May and 15th September 2014, at [Particulars Withheld] area in Molo District within Nakuru County he intentionally did cause his genital organ namely penis to penetrate the genital organ namely vagina of ENMaged 11 years old.

3. He was also charged with an alternative charge of Committing an indecent Act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.

PROSECUTION’S CASE

4. The prosecution called five (5) witnesses.

5. PW1, the complainant gave a sworn testimony where she told the court that she was 11 years old. She has two siblings, one is deceased and the other one went to stay with her mother after she separated from her father, the appellant herein. She stated that she lived with the appellant alone under the same roof and at some point the appellant sold his bed and would sleep with her in same bed and did tabia mbaya to her. That the said act happened severally at night and one day she told her teacher who in turn called and informed the chief after which she was taken to the police station and later to the hospital for examination.

6. PW2, Selina Wangui Kariuki, the assistant chief, testified that the complainant’s teacher called and informed her about the complainant’s allegations. She went and interrogated the complainant who confirmed that the appellant had been defiling her. She informed a volunteer children officer about the same and they reported the matter to the police station. That the complainant was then taken to the hospital in her company.

7. PW3, Dr. Njoroge Kanyotu, a medical officer examined the complainant’s genitalia on 17th September, 2014. He stated that the child was eleven (11) years old. He noted that the hymen was torn and had old tags, meaning that the hymen tear was not recent and a smelly discharge was also noted. He said that laboratory examination and a high vaginal swab revealed some spermatozoa. Moderate puss cells were noted. He opined that there was penetration which had happened less than 72 hours prior the examination. He further said spermatozoa die off after seventy two (72) hours. He then produced the P3 form and the Post Rape Care Form, patient outpatient card and lab requests as exhibits before the lower court.

8. PW4, PC Joel Kimngetich Kosgei, testified that the OCS informed him that the complainant had been defiled. The child was brought to their office by the members of the public and he booked an OB for her. That together with PC Marete they went with the chief and a member of the public to a certain workshop where the accused was working and they arrested him. He issued the complainant with a P3 form. He further testified that the doctor who examined the girl noted her hymen was torn. A high vaginal swab was taken from the girl, no spermatozoa was seen, He told the court that he escorted the accused to the hospital so blood samples were taken from the Appellant however no semen was seen. He produced the DNA report.

9. PW5, Josephine Ambuka Asori, a teacher to the complainant, testified that on 16th March, 2014 she noted the complainant looked sad and upon enquiry, the complainant informed her that her father/the appellant had been sexually molesting her. She took her to the school administration and left her with the headmistress Mrs. Mugo and later on she recorded her statement.

10. On 4th April 2016, the court was satisfied that the prosecution had made out a prima facie case against the accused person and he was put on his defence.

THE DEFENCE CASE

11. The accused testified on 20th April 2016 and he gave sworn evidence. He did not have any witnesses.

12. He testified that on 16th June, 2014, he woke up at usual time of 5. 00a.m. and prepared breakfast. That the complainant prepared herself, took breakfast and she went to school by 7. 00am. Thereafter he also left for work. While at work at 4. 00p.m., four (4) men came asking for him and he was handcuffed and taken to the Molo Police Station and later charged with the offence herein which he totally denied.

13. On cross -examination, he said that he lived with the child alone after separating with her mother in the year 2007. He said that the child had no boyfriend. He said the child had no reasons to falsely implicate him but it was the strangers who had convinced her to do so.

14. On 30th May, 2016 the trial court delivered its judgement, found the accused guilty of Defilement Contrary to Section 8(1) as read with 8(3) of the Sexual Offences Act.

15. The Appellant was aggrieved by the conviction and the sentence and filed this appeal. The grounds of appeal as per his amended petition of appeal are that: -

(a) The learned trial magistrate erred in law and fact by failing to conduct a voire dire examination on PW1 yet she was a minor.

(b) The learned trial magistrate erred in law and fact by failing to comply with the mandatory provisions of section 200 of the Criminal Procedure Code.

(c) The learned trial magistrate erred in law and fact by failing to appreciate that the Victim's age was not proved.

(d) The learned trial magistrate erred in law and fact by failing to find that penetration was not proved.

(e) The learned trial magistrate erred in law and fact by failing to appreciate that the prosecution's case was marred with contradictions and inconsistencies.

(f) The sentence imposed is too harsh and excessive, since it is a mandatory sentence as provided by the statute and thus not informed by the appellants mitigation plus the facts and circumstances of the offence. Such sentences have been declared as unconstitutional by the Supreme Court and applied mutatis mutandis to sexual offences by the Court of Appeal in the case of Dismas Wafula Kilwake vs Republic [2018] eKLR.

REASONS WHEREFORE: The Appellant prayed;

a. For the total success of this appeal;

b. quashing of his conviction;

c. Sentence be set aside and

d. He be set at liberty.

16. The appellant filed written submissions.

17. On the first ground of Appeal, the appellant submitted that voire dire was not conducted by the trial court on PW1 before receiving her evidence, yet she was a child of tender years. The court failed to determine her intelligence and whether she understood the meaning taking an oath. That the court was required to give its opinion after the voire dire examination.

18. The Appellant in support of this position relied on the case of Kibageny Arap Korir vs Republic (1959)E.A 92where the court held that a child under fourteen (14) years is a child of tender years and that voire dire is necessary to establish child’s competency in giving evidence before court.

19. On the purpose of voire dire the appellant cited the case of Johnson Muiruri vs Republic (1983)KLR 445where the court held as follows;

“1. Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a vøire dire examination, whether the child understands the nature of an oath in which even his sworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him.

2. It is important to set out the questions and answers when deciding whether a child of tender years understands the nature of an oath so that the appellate court is able to decide whether this important matter was rightly decided.

3. When dealing with the talking of an oath by a child of tender years, the inquiry as to the child's ability to understand the solemnity of the oath and the nature of it must be recorded, so that the cause the court took is clearly understood.

4. A child ought only to be sworn and deemed properly sworn if the child understands and appreciates the solemnity of the occasion and the responsibility to tell the truth involved in the oath apart from the ordinary social duty to tell the truth.

5. The judge is under a duty to record the terms in which he was persuaded and satisfied that the child understood the nature of the oath. The failure to do so is fatal to conviction.”

20. The appellant thus submitted that failure to conduct voire dire on the child was a flagrant breach of the requirements of Section 19 of the Oaths and Statutory Declarations Act which failure rendered the whole trial a nullity.

21. On ground two of the Appeal, the appellant relied on the case of Richard Charo Mbole vs Republic (2004) eKLR where the court held that failure to comply with section 200 of the Criminal Procedure Code would in appropriate cases render the trial nullity.

22. He also relied on the case of Moses Mwangi Karanja vs Republic (2010) eKLR where the court faulted the trial court for failing to explain to the accused persons his rights to demand the recall and re-hearing of any witness as required under Section 200 of the Criminal Procedure Code. He submitted that failure by the trial court to inform him of the rights to recall witnesses was a serious point of law which cuts deep into the rights of accused person and the administration of justice.

23. On the third ground, the appellant submitted that the age of the child was not proved, and the court ought to have ordered for an age assessment. The appellant relied on the case of John Otieno Obwar vs Republic HCCR No.34B of 2010 where the court held that;

“Defilement is a strict offence whose sentence upon conviction is a staggered depending on the age of the victim. The younger the victim, the stiffer the sentence. Accordingly, it is important that the age of the victim be proved by credible evidence”.

24. The Appellant also placed reliance on the case of Peter Maina Njeri Vs Republic (2016) eKLRwhere court stated that;

“Age is crucial and critical ingredient for the offence of defilement, the question of age is a fact requiring concrete and tangible proof”.

25. On the fourth ground of the appeal, the appellant submitted that there was no proof of penetration. That the narrative by the complainant fell short of stating what tabia mbaya was. That she did not describe what exactly transpired during the act of that tabia mbaya. He relied on the case of Julius Kioko Kivuva vs Republic [2015] eKLR which stated that;

“PW1’s testimony in this regard was not specific as to the act of penetration and her evidence of having sex does not necessarily prove that penetration took place, in the absence of further evidence and details as to what actually happened in the act of having that sex. Evidence of sensory detail, such as what victim heard, saw, felt and even smelled is highly relevant evidence to prove the element of penetration, as a victim’s testimony is the best way to establish this element in most cases. The specificity of this category of evidence even though it may be traumatic, strengthens the credibility of any witness’s testimony and is particularly powerful when the ability to prove a charge rests with the victim’s testimony and credibility as it does in this appeal”.

26. The Appellant argued that the evidence of PW3 who was an expert did not prove penetration. He relied on the case of Mwangi vs Republic (1984)KLR 595 where the court held that;

“The presence of spermatozoa alone in the woman’s vagina is not conclusive proof that she had sexual intercourse nor is absence of spermatozoa in her vagina proof of the contrary. What is required to prove that sexual intercourse has taken place is proof of penetration, an essential element fact of the offence of rape”

27. On the fifth ground of the appeal, it was the accused’s person position that PW3 and PW4 evidence was contradictory. That PW3 stated that spermatozoa was seen in complainant’s genitalia whereas PW4 stated the contrary. He also stated that PW5’s evidence was hearsay and contradictory. He argued that from the evidence tendered it’s crystal clear that the prosecution failed to discharge its duty of proving the case against him beyond reasonable doubt

28. On the last ground of the appeal, the Appellant relied on the South African case of S vs Malgas 2001(2)SA1222 SCA 1235where the court stated;

“what stands out quite clearly is that the courts are a good deal freer to depart from the prescribed sentences that have been supposed in some of the previously decided cases and it is they who are to judge whether or not the circumstances of any particular case are such as to justify a departure .However, in doing so, they are to respect, and not merely pay lip service to the legislature view that the prescribed periods of imprisonment are to be taken to be ordinarily appropriate when crimes of the specified kind are committed.”

29. It is the appellants position that that this court has discretion to reduce the sentence imposed by the trial court to a lower term as all offences are not committed in the same manner and each crime has its own unique facts and circumstances.

30. He urged that the trial court did not consider his mitigation. His prayer is that his appeal be allowed, the conviction be quashed, the sentence be set aside and he be acquitted accordingly.

31. The respondent made oral submissions through Ms. Murunga ODPP and supported the trial court’s judgment.

32. On voire dire the respondent submitted that the same is the discretion of the court. That even if the same was not conducted there was no prejudice occasioned to the appellant since the child gave sworn evidence and he had the opportunity to cross examine her. On the second ground of appeal, the respondent argued that the trial court complied with section 200 of the Criminal Procedure Code, and the appellant chose to proceed from where the case had stopped.

33. On the third ground of Appeal, the respondent submitted that it was evident from the evidence that the child was below the age of eighteen (18) years. That from doctor’s assessment the child was between eleven (11) to twelve (12) years, had no pubic hair, not started receiving menses. That in any event the certificate of birth was in the Appellant’s possession.

34. On the fourth ground of appeal, the prosecution submitted that prosecution established that there was penetration. That after the child was examined it was noted her hymen was broken which court considered and believed.

35. On the last ground of appeal, the respondent contended that the sentence was not harsh and was in compliance with requirements under Section 8(2) of the Sexual Offences Act. They also argued that the case of Dismas Kilwake Case relied on by the accused was inapplicable in view of Muruatetu II case rules.

36. The respondent prayed that this appeal be dismissed.

ISSUES FOR DETERMINATION

37. Having considered the evidence and submission, the following issues rise for determination;

i. Whether failure to conduct voire dire examination was fatal to the prosecution case;

ii. Whether the ingredients of the offence of defilement were proved to the required standard.

iii. Whether the trial court complied with section 200 of the Criminal Procedure Code

iv. Whether the sentence herein was harsh or excessive

ANALYSIS AND DETERMINATION

38. This court being a first appeal the court is bound by the principles laid down in the case of Okeno vs Republic(1972) EA 32where the Court of Appeal for Eastern Africa stated that:

“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya V R 1975) E.A. 336 and to arrive at its 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] E.A. 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 1978) E.A. 424. ”

39. This being a case of defilement what was to be proved are the ingredients of the offence of defilement and in the case of George Opondo Olunga vs Republic[2016] eKLR,it was stated that the ingredients of an offence of defilement are;identification or recognition of the offender, penetrationandthe age of the victim.

Whether failure to conduct voire dire examination on the complainant was fatal to the prosecution case

40. In Maripett Loonkomok vs Republic[2015] eKLR, the Court of Appeal restated that:

"Voire dire, a latin phrase (verum dicere) for saying “what is true”, “what is objectively accurate or honest” has been used in most Commonwealth jurisdictions and in some instances in the United States of America, as “a trial within a trial”, a hearing to determine the admissibility of evidence or the competency or qualification of a witness or juror See Duhaime, Lloyd. “Voire Diredefinition” Duhaime’s Legal Dictionary.”

41. It is now trite that a child of tender years is one under the age of 14 years. In theMaripett Case (supra) it was held that:

“Section 19 of the Oaths and Statutory Declarations Act is concerned with the reception and admissibility of evidence of a child of tender years. The section starts by declaring that where the child does not, in the opinion of the court understand the nature of an oath, his evidence may nonetheless be received though not given upon oath. But that evidence shall only be received if, again in the opinion of the court the child is possessed of sufficient intelligence to justify the reception of the evidence and also if, the child understands the duty of speaking the truth...The question therefore is, who is a child of tender years? The Sexual Offences Act and the Oaths and Statutory Declarations Act are silent on this question. However way back in 1959 in the celebrated case of Kibageny Arap Kolil v R (1959) EA 82 the Court of Appeal for Eastern Africa held that the phrase “a child of tender years” meant a child under the age of 14 years. The only statutory definition of a “child of tender years” is section 2 of the Children Act where it is defined to mean a child under the age of 10 years. This Court has recently in Patrick Kathurima v R,Criminal Appeal No.137 of 2014 and in Samuel Warui Karimiv R Criminal Appeal No.16 of 2014 stated categorically that the definition in the Children Act is not of general application; that it was only intended for the protection of children from criminal responsibility and not as a test of competency to testify. It follows therefore that the time-honored 14 years remains the correct threshold forvoire direexamination..."

42. Section 19 (1) of the Oaths and Statutory Declaration Act is the provision under which voire dire examinations are underpinned to determine the child’s understanding of the nature of an oath. The provision states:

“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance withsection 233of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.”

43. The record discloses that a voire dire examination was not conducted. The complainant said she was eleven (11) years old and her P3 form and treatment notes supported this position.

44. Further in the In the Maripett Case (supra) the Court of Appeal held:

“It follows from a long line of decisions that voire dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this court recently found that;

“In appropriate cases where voire dire is not conducted, but there is sufficient independent evidence to support the charge … the court may still be able to uphold the conviction”.

45. The Court of Appeal in the case of Athumani Ali Mwinyi vs RepublicCriminal Appeal No. 11 of 2015stated thus:

“On the peculiar facts and circumstances of this case, it is our considered view that the trial was not vitiated by the failure to conduct voire dire examination. The complainant’s evidence was congent, she was cross examined and medical evidence confirmed penetration. But of utmost significance is the admitted fact that the Appellant took the complainant and lived with her as his wife after paying dowry. So that even without the complainant’s evidence the offence of defilement of a child was proved from the totality of both the prosecution and defence evidence especiallythe medical evidence which corroborated the fact of defilement.”

46. It is evident from the record that the court did not conduct voire direexamination because it was of the view this was not a child of tender years. This was drawn from the description in the Children Act and which the Court of Appeal in the Maripett Case (supra) distinguished. It is however evident from the record that the child understood why she was in court, and gave her testimony cogently. She was cross examined by the accused and her testimony remained coherent and credible. What she told the court was supported by the medical evidence obtained from the physical examination of her body. Clearly there was no prejudice suffered at all by the Appellant. The trial court which had the privilege to observe the demeanor of the complainant formed an opinion that she was telling the truth. This is one the cases where the Maripet Case above set out the exception. The trial court’s omission is not sufficient reason to nullify the proceedings.

47. This ground should fail.

Whether from the testimony of the witnesses there is sufficient evidence to prove beyond reasonable doubt the ingredients of defilement

Penetration is a crucial ingredient in a defilement case.

48. Section 2 of the Sexual Offences Act defines penetration;

“as the partial or complete insertion of the male genital organ to the genital organ of a female.”

49. The Supreme Court in the case of Bassita vs Uganda S. C. Criminal Appeal No. 35 of 1995 held as follows:

“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victims 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.”

50. The child in this case, testified that she lived with the appellant under the same roof, they would sleep in one bed and on many occasions the appellant used to do Tabia Mbaya to her. When she was cross examined by the Appellant she stated as follows;

“you used to sleep on top of me and you would put your thing into mine. You did it several times. You told me to remove my pants and spread my legs. You then lay on top of me. I felt pain but you told me not to cry. I would bathe and take breakfast”

51. The examination by PW3 and the medical evidence he produced supported the complainant’s case;the hymen was torn and had old tags meaning that the hymen tear was not recent. Laboratory examination and a high vaginal swab revealed some spermatozoa an indication that penetration had happened less than seventy two (72) hours prior the examination.

52. The DNA report which indicated that neither spermatozoa nor semen was seen. The trial court rightly observed that this DNA was done almost one year after the incident happened and these results could not nullify the earlier examinations. The complainant’s description of how the tabia mbaya was done to her, the presence of spermatozoa, together with broken hymen confirms beyond reasonable doubt there was penetration.

53. On proof of age Kaingu Kasomo vs RepublicCriminal Appeal No. 504 of 2010 the Court of Appeal stressed this point and expressed itself as follows:

“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.

54. The complainant stated that she was eleven (11) years old. The trial court relied on the treatment notes which indicated that the child had not started menstruating and had no pubic hair. The P3 form indicated the age of the complainant as eleven (11) years. The appellant in his testimony confirmed that the complainant was eleven (11) years old.

55. Further the trial magistrate who had the advantage of seeing the complainant also made own assessment and was of the view that the child could be aged between 11-12 years old.

56. Rule 4 of the Sexual Offences Rules of Court Rules recognizes that:

"When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."

57. Francis Omuroni vs UgandaCr. Appeal No. 2 of 2000 court held:

“That in defilement cases medical evidence is paramount in determining age of the victim but in absence of any other evidence age may also be provided by birth certificate, the victim’s parents or guardian and by observations and common sense”

58. It is clear that there was no error here.

Whether the trial court did not comply with the provisions of section 200 of the criminal procedure code and the consequences of the same;

59. Section 200of theCriminal procedure Codeprovides that:

“200 (1) Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may-

(a) deliver a judgment that has been written and signed but not delivered by his predecessor; or

b) Where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or re-summon the witnesses and recommence the trial.

(2) Where a magistrate who has delivered judgment in a case but has not passed sentence, ceases to exercise jurisdiction therein and is succeeded by a magistrate who has and exercises that jurisdiction, the succeeding magistrate may pass sentence or make any order that he could have made if he had delivered judgment.

(3) Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and reheard and the succeeding magistrate shall inform the accused person of that right.

(4) Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.”

60. It is the duty of the trial Court to inform the accused of his right under Section 200 of the Criminal Procedure Code.

61. The record shows that the learned trial magistrate complied with the law. It states: On 29th June 2015

“Section 200 CPC Complied. Court explained that Hon. Nyaga heard three witnesses and has the right to choose how it proceeds.

Accused: Let the case go on.”

Whether the sentence herein was harsh or excessive

62. The Appellant herein complained that the sentence imposed on him was harsh and excessive.

63. Sentencing is the discretion of the trial court, though power still reposes in an appellate court to review the sentence if material factors were overlooked; or, the sentence was founded on erroneous principles.

64. Section 354 (3) of Criminal Procedure Code provides that at the hearing of an appeal-

“The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may…..…(ii) alter the finding, maintain the sentence, or with or without altering the finding reduce or increase the sentence; or….. ”

65. In Bernard Kimani Gacheru vs Republic, Criminal Application No.188 of 2000 (Nakuru), the Court reaffirmed the principle thus:

“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 stated is shown to exist.”

66. In Macharia vs Republic [2003] 2 E.A 559 the Court of Appeal had this to say on sentencing;

“The Court would not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it would not ordinarily interfere with that discretion exercised by a trial judge, unless it was evident that the judge acted upon some wrong principles or overlooked some material factors. …The sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and it was thus not proper exercise of discretion in sentencing for the Court to have failed to look at the facts and circumstances of the case in their entirely before settling for any given sentence.”

67. In Shadrack Kipchoge Kogo vs Republic Eldoret Criminal Appeal No. 253 of 2003 the Court had this to say;

“Sentence is essentially an exercise of the trial court and for this court to interfere, it must be shown that in passing the sentence, the court took into account an irrelevant factor or that a wrong principle was applied or short of those the sentence was so harsh and excessive that an error in principle must be inferred.”

68. Section 8(3) of the Sexual Offences Act provides:

“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.” (emphasis mine).

69. The trial court noted that the child’s age was not proved with exactitude and the trial court also before sentencing considered appellant’s mitigation. The court noted that there was no remorse on the part of the appellant. To avoid any prejudice to the appellant it proceeded under Section 8 (1) as read with Section 8 (3) of the Sexual Offences Actand sentenced him to 20 years imprisonment.

70. In that regard the appellant was correctly and lawfully sentenced under Section 8(3) of the Sexual Offences Act.

71. In sum the appeal has no merit and the same is dismissed

72. The conviction and sentence is sustained.

73. Right of Appeal explained.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF MARCH , 2022.

MUMBUA T. MATHEKA

JUDGE

In the presence of:-

Court Assistant Edna

For state: Ms. Murunga

For appellant: Appellant in person