https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10529

JMM v Republic (Criminal Appeal E090 of 2024) [2026] KEHC 10529 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10529 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E090 of 2024 S Mbungi, J July 10, 2026 Between JMM Appellant and Republic Respondent (Being an appeal from the judgment delivered on 2/12/2024 by Hon. Martin Mutegi – SPM AT Kangema in Criminal Case S.O No. E019 of 2024) Judgment 1.The appellant herein, JMM , was charged with the offence of Attempted Defilement contrary to section 9(1) as read with section 9(2) of the Sexual offences Act, No. 3 of 2006. The particulars are that on the 18th day of August 2024 at around 16:00 hours at [Particulars Withheld] , Kamacharia Sub-location in Mathioya within Muranga County, the appellant intentionally attempted to cause his penis to penetrate the vagina of EMM a child aged 4 years . 2.The appellant 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. The particulars are that on the 18th day of August 2024 , the appellant intentionally touched the vagina of EMM , a child aged 4 years with his penis. Facts at Trial 3.The appellant pleaded not guilty to both charges and the case moved to full trial. The prosecution set out to prove their case by calling four witnesses. 4.PW1 was EMM, the victim . Following a voire dire examination , PW1 gave a sworn statement stating that she is E.M.M , she goes to school at Kaganjo Primary and that she is in PP1. She proceeded to identify the accused person by pointing him. She later kept quite suddenly and was declared a vulnerable witness in accordance to section 31 of the Sexual Offences Act. Monicah Kimani a social worker was appointed as an intermediary after the victim was declared a vulnerable witness on 23rd September 2024 (now PW1). She testified on behalf of the victim after meeting the child. John (the accused) had been given work as a casual laborer. When the mother went to cut napier grass , John remained in the compound. John proceeded to take her under the guava tree , removed her clothes , smeared saliva on her private part and on his penis and then proceed to penetrate her and also penetrated her using his fingers. He also inserted a piece of broken spectacles in her vagina. She later complained of pai and was taken to Nyakianga Hospital and later reported at Nyakianga Police station. Upon cross-examination by the accused, she stated that it’s what the child told her and her work is to report 5.PW2 was NNK , a farmer and the victim’s mother. The complainant is 5 years old born on 08/10/2019, Birth Certificate No. 9xxxxx3 as MFi “1”. The accused person is her neighbor and that she had given him work on her shamba. She went to the market and left him on the shamba. The children were playing outside near the shamba and he called her child and took her to the bush. When she came back from the market , she noticed her daughter was seated holding her private parts. He then asked her what was wrong and PW1 said that the accused had inserted his kasusu inside her kasusu. In the bush the accused, removed one shoes, removed her tights on one leg and then inserted his kasusu in her kasusu.PW2 checked her vagina and there were bruises and then went to Nyakianga Hospital where she was treated. 6.She reported at Kiriaini Police station and the accused was later arrested at his home on a Friday.The P3 form is in court marked as MFI “2” , and the treatment notes as MFI “3”. Under cross-examination by the accused, PW2 confirmed that she was just told what had happened and that she did not witness anything. M saw the accused. The complainant was examined in the hospital and the doctors filled the P3 form. In re-examination , PW2 stated that ,M is 6 years old and is her cousin’s son.He recorded his statement and that the accused sent her an SMS via telephone number 07xxxxxxx5 stating that “ mwambie mtoto aseme hakumbuki”. 7.PW3 was the Investigating Officer from Karani Police Station. That on 19/8/2024, he was called by the OCS who assigned him Defilement case . The child had been brought by her mother and they went to Nyakianga Hospital where the child was examined and treated. He later recorded the statements from the child and the mother . The P3 form was filled and on 23/8/2024 at around 7:00 hours, the accused was arrested and later charged. According to the child’s statement, she was called by John while playing with other kids. They went aside , removed her shoe, tight and panty through one leg. He inserted his penis into her vagina. He visited the scene and compiled her investigation. Upon cross-examination , PW3 stated that it’s the child who told him what had happened. 8.PW4 was Joel Onyancha , a Clinical Officer at Muranga County Referral Hospital. He filled the P3 form of EMM a child aged 4 years 11 months. On 19/8/2024, the complainant went to the hospital. She had a normal genitalia , no lacerations or discharge noted. Nothing was found on urinalysis. On high vaginal swap there were 6-8 puss cells showing that there was an infection , a bacterial infection which was likely caused by hygiene or sexual activity. The hymen was broken but not freshly broken. His conclusion was attempted defilement. P3 form as exhibit 2 and treatment notes as exhibit 4 9.The Court after going through the evidence produced by the prosecution , ruled that the prosecution had made a prima facie case sufficient to put the accused persons on their defense. Defense Case. 10.DW1 , JMM, the accused. He gave an unsworn statement of defense. That on 18/8/2024 they prepared breakfast and went to church. They came back at 2 pm, had lunch and later in the evening they prepared supper and they ate. That on 23/8/2024 at around 7:45am , PW2 came together with police officers and he was taken to the police station but was not told what he had done and was later taken to court. 11.That marked the close of the defense case. The trial court having considered the evidence produced by the prosecution, convicted and sentenced the accused to (10) years’ imprisonment. The Appeal 12.Having been dissatisfied by the decision at the trial court the accused lodged a petition to appeal the decision. The appeal by JMM is premised on the following grounds as set out in the petition of Appeal :a.That , the learned trial Magistrate erred in law and fact byi.Misapplying section 31 of the Sexual Offences Act, 2006, through the appointment of and use of an intermediary who gave evidence in place of the minor complainant, contrary to the intended facilitative role under the law.ii.By permitting the intermediary to substitute the complainant’s testimony entirely, thereby violating the prescribed legal procedure for receiving evidence from vulnerable witnesses and infringing the Appellant’s constitutional right to a fair trial under Article 50(2)(k) of the Constitution.b.That, the learned trial magistrate erred in law and fact by admitting hearsay evidence from the intermediary, contrary to Section 63 of the Evidence Act and Article 50(2)(k) of the Constitution, thereby denying the Appellant the right to challenge and cross-examine the primary evidence against him.c.That, the Learned Trial Magistrate Erred in Law and Fact by Convicting the Appellant in the Absence of Clear and Cogent Evidence Proving the Essential Elements of Attempted Defilement.d.That, the learned trial magistrate erred in law by failing to consider the period the Appellant spent in pre-trial custody, contrary to Section 333(2) of the Criminal Procedure Code, thereby occasioning a miscarriage of justice in sentencing. Appellant’s Case 13.The appeal was canvassed by way of written submissions. In his submissions , the Appellant contended that the learned trial magistrate misapplied section 31 of the Sexual offences Act by appointing an intermediary and substituted her as PW1 , rather than facilitating the complainant’s evidence. He also submitted that the complainant did not give evidence after being declared a vulnerable witness , instead the intermediary narrated the child’s account while the complainant was away from court. He relied on the decisions in DKK V Republic (2019) eKLR, to submit that the that , the function of an intermediary is not to replace the witness , but to assist in communication. BOM V Republic (2021) [eKLR] , to substitute the intermediary’s narration in place of the child’s evidence is to violate the accused person’s right to a fair trial . Thus violating the accused persons rights to fair trial. JOO V Republic (2015) [eKLR] , allowing the intermediary to narrate what the child allegedly said outside court , while the child is not present renders the evidence hearsay and inadmissible. Thus violating the accused persons rights to fair trial. Gilbert Mwangi Waweru V Republic (2017) [eKLR] , an intermediary is intended to act as a bridge not a replacement for the child’s testimony and allowing the intermediary to narrate what the child allegedly said outside court , while the child is not present renders the evidence hearsay and inadmissible. 14.The appellant further argued that the admission of Hearsay Evidence is a violation of the Law of Evidence and Constitutional Rights. The appellant stated that the fact that the intermediary was merely reporting statements made by the child outside court and was not giving testimony based on personal knowledge or observation, constitutes hearsay evidence. The appellant further stated that the prosecution did not demonstrate that the child was unavailable to testify, nor that the statement met any exception to the hearsay rule. The court nonetheless admitted and relied upon that hearsay to convict the Appellant. This violated the rules of evidence and infringed the Appellant’s fundamental right under Article 50(2)(k) of the Constitution to adduce and challenge evidence. 15.They relied on the case of David Ochieng v Republic [2018] eKLR , to submit that hearsay evidence ,unless falling under recognized exceptions , is inadmissible and cannot form the basis of a conviction. 16.Moreover ,the Appellants also submitted that the trial magistrate convicted the appellant in absence of clear and cogent evidence proving the essential elements of attempted defilement. The Appellants stated that for attempted defilement to be proved, there must be the intention to penetrate and the second is an overt act that is more than merely preparatory and points directly to the commission of the act(actus reus). They further stated that the medical evidence relied by the trial court was incapable of sustaining a conviction (normal external genitalia. No lacerations. No discharge noted. Syphilis was negative. There was nothing found upon urinalysis. The hymen was broken but not freshly torn. Sometimes the hymen could be broken in other ways. My conclusion was attempted defilement) 17.They relied on the cases of Mwania v Republic [2023] [eKLR], David Munga v Republic [2021] [eKLR], to submit that for an attempt to be established, the act must move from mere preparation and reach the execution phase and that where medical evidence does not support the allegations of defilement or any attempt thereof and where the complainant’s account is not subjected to cross-examination, the conviction cannot be sustained. The Appellants argued that neither the actus reus nor the mens rea was established and the intermediary’s testimony was hearsay, and the complainant was not presented to testify. The Appellants submit that the learned judge erred in law and fact in finding a conviction where the prosecution failed to discharge its burden of proof under Section 9(1) of the Sexual Offences Act and Article 50(2)(k) of the Constitution, which guarantees the right to challenge and test evidence. Hence the conviction is therefore unsafe and ought to be quashed. 18.On the fourth ground the Appellants submitted that the Learned trial magistrate failed to consider the period the Appellant spent in pre-trial custody, contrary to section 333(2) of the Criminal Procedure Code. The Appellant argued that he was arrested on 23rd August 2024 and remained in custody throughout the trial up to the date of sentencing 21st December 2024. However, the trial court did not indicate anywhere in the judgment or sentencing order whether this period was considered when passing the sentence of ten (10) years imprisonment. 19.He submitted that failure to consider the custody time render the sentence excessive and unlawful and violates article 50(2)(p) of the Constitution. He cited the case of Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR , to submit that the court is obliged to take into account the period that an accused has spent in custody when imposing a custodial sentence. He also cited the case of Bethwel Wilson Kibor v Republic [2009] eKLR, that where a court fails to demonstrate on record that it considered the period already spent in custody, the appellate court is entitled to interfere with the sentence. 20.In conclusion , the appellant submits that the conviction was weakened by procedural and evidential irregularities thus they pray that this Honourable Court Allows the appeal, Quashes the conviction and sets aside the sentence. Respondents Case 21.The Respondent opposed the appeal and urged the court to uphold the conviction and sentence. The Respondents submit that the Appellants grounds for appeal are not substantial grounds to warrant this appeal. On the ground that the Appellant was not accorded services of an advocate at the onset of his trial , the respondents submit that the appellant during trial , he was able to cross examine all the prosecution witnesses and he never raised the issue during his trial. 22.The Respondent further submit that on the issue that the trial court did not consider his mitigation , it is indeed true that the court did consider his mitigation before sentencing. The sentence given to the appellant in the respondents view is indeed proper and within the law. 23.Thy relied on the case of Bernard Kimani Gacheru vs. Republic [2002] eKLR , to submit 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 stated is shown to exist.” 24.The respondents urge the court to strike out the appeal. Analysis and Determination 25.This being a first appellate court , it is enjoined to reconsider and re-evaluate the evidence tendered before the trial court and draw its own independent conclusions, while bearing in mind that it did not have the opportunity to see or hear the witnesses testify. The duty of a first appellate court was stated in the case of Kiilu & Another vs. Republic [2005] eKLR , where the Court of Appeal held that :“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions.” 26.In Kiio V Republic [2023] eKLR , the court further state that “ On a first appeal, the appellate court is entitled to re-evaluate the evidence and draw its own conclusions.” 27.I have considered the grounds of appeal, the evidence adduced in the lower court, and the rival submissions of parties. I find the main issues for determination to be ;i.Whether the learned trial Magistrate erred in law and fact by misapplying Section 31 of the Sexual Offences Act, 2006, in the appointment and use of an intermediary.ii.Whether the evidence of the intermediary constituted inadmissible hearsay evidence.iii.Whether the prosecution proved the essential elements of the offence of Attempted Defilement beyond reasonable doubt.iv.Whether the learned trial Magistrate erred in law by failing to take into account the period the Appellant spent in pre-trial custody when passing sentence. Whether the learned trial Magistrate erred in law and fact by misapplying Section 31 of the Sexual Offences Act, 2006, in the appointment and use of an intermediary 28.Section 31 of the Sexual Offences Act provides that an intermediary can be appointed at any time during the trial to assist vulnerable witnesses such as the alleged victim, a child or a person with mental disabilities. Section 31(7) of the Sexual Offences act provides that the intermediary does not give Evidence on behalf of the witness, instead their role is to assist the witness in communicating“If a court directs that a vulnerable witness be allowed to give evidence through an intermediary, such intermediary may: (a) convey the general purport of any question to the relevant witness; (b) inform the court at any time that the witness is fatigued or stressed; and (c) request the court for a recess.” 29.The complainant in this case is a child and the justice of this case demands that an intermediary be appointed. In the Present case Monicah Kimani, a social worker was appointed as the intermediary after EMM was declared a vulnerable witness. A voire dire examination was conducted , PW1 pointed at the accused and later became silent and was later declared a vulnerable witness. The intermediary testified on behalf of the child . 30.In my view the trial court did not misapply section 31 of the Sexual Offences Act .The Court of Appeal in the case of MM v Republic [2014] eKLR,“The role of an intermediary is provided for in subsection 7 of section 31 namely, to convey the substance of any question to the vulnerable witness, inform the court at any time that the witness is fatigued or stressed; and to request the court for a recess. It is difficult for a child or indeed a victim of a sexual attack to publicly relive the most traumatic and humiliating experience of their lives in order to get justice, more so, if they have to be subjected to the rigors of daunting and intimidating cross-examination. The thinking behind the enactment of section 31 was, in our view, to moderate these traumatic effects in criminal proceedings. 31.In PC v Republic [2023] eKLR , the High Court at Nairobi considered a similar situation where a mother acted as an intermediary for her 3-year-old child. The Court held that where the child is too young to give evidence, Section 33 of the Sexual Offences Act allows the trial court to rely on either the evidence of the surrounding circumstances, or under Section 31(4), to give evidence through an intermediary or both. The Court recognized that for very young children, direct testimony may not be possible, and the intermediary plays a crucial role in ensuring the child's voice is heard. 32.In the instant case the child gave an unsworn evidence in court, the child was 4 years old and had already been sworn and identified the accused before becoming distressed and unable to continue. The trial magistrate, having observed the child firsthand, made a determination that the child was a vulnerable witness and appointed an intermediary. The intermediary, as a social worker, had met with the child and was in a position to relay the child's account. The trial court exercised its discretion under Section 31(4) to allow the child to give evidence through the intermediary. 33.I find that the trial magistrate did not misapply Section 31 of the Sexual Offences Act. The magistrate properly exercised discretion in declaring the child a vulnerable witness and appointing an intermediary. The intermediary facilitated the child's evidence rather than substituting it entirely. The child was present in court initially, was sworn, and identified the accused. The intermediary then relayed the child's account in a manner that protected the child from further trauma. 34.I therefore find no merit in the appellant's first ground of appeal. Whether the evidence of the intermediary constituted inadmissible hearsay evidence. 35.The appellant submits that the intermediary's evidence was hearsay because she was merely reporting statements made by the child outside court and was not giving testimony based on personal knowledge or observation. The appellant argues that this violated Section 63 of the Evidence Act and Article 50(2)(k) of the Constitution. 36.Section 63 of the Evidence Act provides that oral evidence must, in all cases whatever, be direct. Section 63(b) states that the statement of a person who is not called as a witness is hearsay and inadmissible, except as provided in the Act. 37.However, Section 31(4) of the Sexual Offences Act specifically provides that a vulnerable witness "may give evidence through an intermediary." This provision creates an exception to the general rule against hearsay for vulnerable witnesses. When a child gives evidence through an intermediary, the intermediary is not giving evidence of their own knowledge but is relaying the child's evidence to the court. Section 33 of the Sexual Offences Act also allows the trial Court to rely on either the evidence of the surrounding circumstances, or under section 31 (4), to give evidence through an intermediary or both. 38.In PC v Republic [2023] eKLR, the court held that PW1, the mother of the complainant, a 3-year-old was allowed to testify as the child’s intermediary, she gave evidence as a legally recognized intermediary, for an on behalf of the child complainant herein and that such evidence was not hearsay, it was admissible. The Court of Appeal in MM v Republic [2014] eKLR clarified that "the evidence presented by the intermediary to the court is that of the witness and not the intermediary's." The intermediary is merely a conduit through which the witness communicates with the court. The intermediary does not give independent evidence but relays the witness's evidence. 39.In the instant case, the intermediary testified that she had met with the child and was relaying what the child told her. The child had already been sworn and had begun her testimony before becoming unable to continue. The intermediary was not giving independent hearsay evidence but was facilitating the child's evidence under Section 31(4) of the Sexual Offences Act. 40.The appellant relies on David Ochieng v Republic [2018] eKLR to argue that hearsay evidence is inadmissible. However, this case must be understood in the context of general hearsay rules. The Sexual Offences Act creates a specific exception for vulnerable witnesses, and the intermediary's evidence falls within this exception. 41.Furthermore, the appellant was given the opportunity to cross-examine the intermediary. The record shows that the accused cross-examined the intermediary, who stated that "it's what the child told her and her work is to report." The appellant had the opportunity to challenge the intermediary's account and to test the credibility of the child's statements as relayed by the intermediary. 42.The admission of the intermediary's evidence did not violate the appellant's right to a fair trial under Article 50(2)(k) of the Constitution. The appellant was able to adduce and challenge evidence, including cross-examining the intermediary and the other prosecution witnesses. 43.I therefore find no merit in the appellant's second ground of appeal. Whether the prosecution proved the essential elements of the offence of Attempted Defilement beyond reasonable doubt 44.The appellant submits that the trial magistrate convicted him in the absence of clear and cogent evidence proving the essential elements of attempted defilement. The appellant argues that for attempted defilement to be proved, there must be: (a) the intention to penetrate; and (b) an overt act that is more than merely preparatory and points directly to the commission of the act (actus reus). 45.Section 9(1) as read with Section 9(2) of the Sexual Offences Act provides for the offence of attempted defilement. Section 388(1) of the Penal Code defines an attempt as follows: "When a person intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence." 46.In Joseph Mwanzia Mutunga v Republic [2022] KEHC 2194 (KLR), the High Court at Makueni held that for attempted defilement, the prosecution must prove: (a) the age of the victim; (b) the actual act of attempt to defile; and (c) the identity of the culprit. 47.In Mwania v Republic (Criminal Appeal E009 of 2022) [2023] KEHC 22691 (KLR), the High Court at Machakos cited Benson Musumbi v Republic [2019] eKLR and stated: "The prosecution in an offence of attempted defilement must prove the other ingredients of the offence of defilement except penetration; it must prove the age of the complainant, positive identification of the assailant, and then prove steps taken by the assailant to execute the defilement which did not succeed. Attempted defilement is as if it were a failed defilement, because there was no penetration." 48.In the instant case, the prosecution proved all the essential elements of attempted defilement:(a)Age of the victim: The age of the complainant was proved through the birth certificate (MFI "1") produced by PW2, which showed that EMM was born on 08/10/2019. At the time of the alleged offence on 18th August 2024, the complainant was 4 years and 10 months old. This element is clearly proved.(b)Identity of the culprit: The complainant identified the accused in court by pointing at him. PW2, the victim's mother, confirmed that the accused was her neighbor and that she had given him work on her shamba. The identity of the appellant as the perpetrator is therefore established.(c)The act of attempted defilement: The evidence of PW2 (the mother) is crucial. PW2 testified that when she returned from the market, she noticed her daughter was seated holding her private parts. The child told her that the accused had inserted his "kasusu" inside her "kasusu." PW2 checked her vagina and found bruises. The child was then taken to Nyakianga Hospital where she was treated. 49.The appellant argues that the medical evidence does not support the charge. PW4, Joel Onyancha, a Clinical Officer, testified that the complainant had "normal genitalia, no lacerations or discharge noted. Nothing was found on urinalysis." However, PW4 also found 6-8 pus cells on high vaginal swab, indicating a bacterial infection "likely caused by hygiene or sexual activity." Crucially, PW4 testified that "the hymen was broken but not freshly broken" and his conclusion was "attempted defilement." 50.The fact that the hymen was broken, even if not freshly broken, is significant. In Mwarome Munga Janji v Republic [2021] eKLR, the Court of Appeal recognized that medical evidence of a broken hymen is relevant in sexual offence cases. The absence of fresh lacerations does not negate the offence of attempted defilement; it merely indicates that penetration was not achieved, which is consistent with the charge of attempted defilement rather than defilement. 51.The presence of pus cells indicating a bacterial infection "likely caused by hygiene or sexual activity" supports the conclusion that there was sexual contact. The clinical officer's conclusion of "attempted defilement" was based on his professional assessment of all the medical findings. 52.The appellant relies on Mwania v Republic [2023] eKLR and David Munga v Republic [2021] eKLR to argue that the act must move from mere preparation and reach the execution phase. However, in this case, the evidence shows that the appellant took the child to the bush, removed her shoe, tight and panty through one leg, and attempted to insert his penis. These acts are clearly beyond mere preparation and constitute overt acts pointing directly to the commission of defilement. 53.The evidence of PW2, corroborated by the medical evidence and the child's account relayed through the intermediary, proves the actus reus of attempted defilement. The appellant's acts of taking the child to a secluded place, removing her clothing, and attempting penetration constitute an overt act more than merely preparatory. 54.The appellant's defense was a bare denial that he was at church on the material day. This defense was properly rejected by the trial magistrate, who had the advantage of observing the witnesses and assessing their credibility. 55.I find that the prosecution proved the essential elements of attempted defilement beyond reasonable doubt. The age of the victim was proved, the identity of the appellant was established, and the overt act of attempted defilement was proved through the testimony of PW2, the intermediary, and the medical evidence of PW4. 56.I therefore find no merit in the appellant's third ground of appeal. Whether the learned trial Magistrate erred in law by failing to take into account the period the Appellant spent in pre-trial custody when passing sentence. 57.The appellant submits that he was arrested on 23rd August 2024 and remained in custody throughout the trial up to the date of sentencing on 21st December 2024, but the trial court did not indicate whether this period was considered when passing the sentence of ten (10) years’ imprisonment. 58.Section 333(2) of the Criminal Procedure Code provides: "Subject to the provisions of section 38 of the Penal Code (Cap. 63), every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise ordered in the case of a person who, having been convicted of an offence and sentenced to imprisonment, was at the time the sentence was pronounced, in custody." 59.In Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, the Court of Appeal held that “Taking into account the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody." 60.In Bethwel Wilson Kibor v Republic [2009] eKLR, the Court of Appeal held that where a court fails to demonstrate on record that it considered the period already spent in custody, the appellate court is entitled to interfere with the sentence. 61.However, in Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal stated: "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." 62.In the instant case, the trial court sentenced the appellant to ten (10) years’ imprisonment. While the trial court did not explicitly state that it considered the pre-trial custody period, this Court must consider whether the sentence is manifestly excessive or whether the failure to explicitly mention the custody period renders the sentence unlawful. 63.The appellant was charged with attempted defilement of a 4-year-old child. The maximum sentence for attempted defilement under Section 9(2) of the Sexual Offences Act is life imprisonment. The trial court imposed a sentence of ten (10) years, which is well below the maximum and reflects the gravity of the offence while considering the fact that penetration was not achieved. 64.The appellant was in custody from 23rd August 2024 to 21st December 2024, a period of approximately four (4) months. While the trial court should have explicitly considered this period, the sentence of ten (10) years is not manifestly excessive. In the circumstances of this case, where a 4-year-old child was subjected to sexual abuse by a person entrusted with work on the family's shamba, the sentence is proportionate and within the discretion of the trial court. 65.This Court, in exercise of its appellate jurisdiction, can and should take into account the period spent in pre-trial custody. 66.I therefore find that while the trial court should have explicitly considered the pre-trial custody period, the sentence itself is not manifestly excessive. Conclusion 67.Having considered all the grounds of appeal and the evidence on record, I make the following findings:i.The trial court did not misapply Section 31 of the Sexual Offences act.ii.The evidence of the intermediary was not inadmissible hearsay.iii.The prosecution proved the essential elements of attempted defilement beyond reasonable doubtiv.The trial magistrate should have explicitly considered the period spent in pre-trial custody, the sentence of ten (10) years shall be less 4 months spent in custody during the trial. 68.I find no merit in the appeal. The appeal is hereby dismissed. The conviction for attempted defilement is upheld. The sentence of ten (10) years’ imprisonment is upheld. 69.Right of Appeal 14 days. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 10TH DAY OF JULY, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Angong’aMr.Mwangi for the ODPP for present.Appellant present online.Mr. Kariuki present.