JNO v Republic (Criminal Appeal 90 of 2019) [2026] KECA 1192 (KLR) (26 June 2026) (Judgment)

JNO v Republic (Criminal Appeal 90 of 2019) [2026] KECA 1192 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KECA 1192 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Appeal 90 of 2019 PM Gachoka, JM Ngugi & MB Kairaria, JJA June 26, 2026 Between JNO Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Nakuru (Mativo, J.) dated 7th November, 2019 in HCCRA No. 206 of 2014) Judgment 1.The appellant, Joel Njeru Olusiola, was the accused person in the trial before the Senior Resident Magistrate’s Court in Adult Criminal Case No. 117 of 2014. He was charged with the offence of incest by male person contrary to section 20(1) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence were that on the 24th day of May, 2014, at [Particulars Withheld] Estate in Nakuru, within Nakuru County, the appellant intentionally and unlawfully committed an act of inserting his male genitalia organ, namely penis, into a private part, namely anus, of JO, a child aged 5 years, who to his knowledge was his son, and caused penetration. 2.The appellant was also faced 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 of the victim, date and place of the alternative count were the same as that in the main charge. 3.At first, the appellant pleaded guilty to the offence and stated that he defiled the complainant because the devil made him do it. The learned trial magistrate then made an order for a mental assessment of the appellant. After the mental assessment was done, the appellant took plea again and pleaded not guilty and the case proceeded to full hearing. In brief, the evidence that emerged from the trial is as follows. 4.The complainant (PW1) gave unsworn testimony as the trial court observed that, being a child of four (4) years, he did not understand the meaning of giving an oath or the difference between telling the truth and a lie. He testified that on 24th May, 2014, the appellant (his father) removed his clothes and laid him on the bed. He then bit his buttocks and inserted “kitu ndani kwa mapupu” to mean that he inserted his penis in his anus; and he felt pain. After the incident he saw the appellant being beaten by one Ndegwa. 5.Antony Michira (PW2) testified that on the noon of 24th May, 2014, he was in his house when he heard some noise outside. He stepped out and found a group of about fifty people and his friend, one Muriithi, informed him that the appellant had defiled his own child. He went to the appellant’s house and found the complainant with the crowd. At the time, the complainant’s rectum was protruding through the anal opening and he was standing with his legs apart, unable to walk. He accompanied both the complainant and the appellant to hospital for medical examination and treatment. Upon examination, the doctor treated the complainant and confirmed that he had been defiled. Thereafter, they returned the appellant to the estate and found a big crowd of people who beat him up but he was rescued by the police. 6.Dorcas Wacuka (PW3) testified that on the noon of 24th May, 2014, she was in her house when she heard some noise outside and went to see what was happening. She found a group of about thirty (30) people and was informed by PW2 that the complainant had been defiled. She saw the complainant standing and unable to walk as his rectum protruding from his anus; he looked weak. The crowd started beating the appellant and she called the police to rescue him. Later, both the complainant and the appellant were taken to hospital for medical examination and treatment. 7.Corporal Daniel Mbone (PW4) confirmed the testimonies of PW1, PW2 and PW3, including the fact that the police rescued the appellant from the mob justice. He informed the court that PW1 looked traumatized and told him that his father did bad things to him in his anus. He also informed the court that the doctor conducted an age assessment and found the complainant to be four (4) years old; and produced the age assessment form as evidence. The appellant was later arrested and charged. 8.Justus Nondi, a doctor from Nakuru Provincial Hospital was PW5. He testified that the complainant presented with a history of sexual assault and the medical examination showed that his rectum was protruding from his anus and he had a tear at the six o’clock position of his anus. He was treated, examined for STI and put on PEP. The lab results tested negative for HIV, VDRL and hepatitis. The conclusion was that he had been defiled. PW5 produced as evidence the P3 form and the lab reports. 9.At the conclusion of the trial, the learned trial magistrate convicted the appellant and sentenced him to life imprisonment. No finding was made on the alternative count. 10.The appellant was aggrieved by the decision of the lower court and filed an appeal against the conviction and sentence before the High Court at Nakuru in Criminal Appeal No. 206 of 2014. 11.The High Court (J.M. Mativo, J., as he then was) dismissed the appeal and upheld both conviction and sentence in a judgment dated 7th November, 2019. In doing so, however, the learned Judge found that although the appellant had been charged under section 20(1) of the Sexual Offences Act, both the particulars in the charge sheet and the evidence adduced at trial disclosed the offence of defilement under section 8(1) as read with section 8(2) of the Sexual Offences Act, since the complainant was a male child and not a female child as contemplated under section 20(1). Invoking section 186 of the Criminal Procedure Code, the learned Judge accordingly substituted the conviction from incest to defilement. 12.The appellant was again dissatisfied with the decision of the High Court and has lodged the present appeal. Acting pro se, he raised three (3) grounds in his Memorandum of Appeal and Supplementary Grounds of Appeal, two of which challenge sentence and one conviction. In summary, they are as follows:a.The appellant’s sentence of life imprisonment is unconstitutional and does not serve the objectives of the Sentencing Policy Guidelines.b.The mandatory life sentence denied the learned trial magistrate the discretion in imposing an appropriate sentence based on the evidence adduced.c.The learned appellate judge failed to consider the appellant’s defense. 13.Although the appellant stated that his appeal challenges both conviction and sentence, his written submissions and oral highlights focused almost entirely on sentence. His challenge to conviction was only faintly pursued through the complaint that his defence had not been considered. 14.The appeal was argued by way of written submissions by both parties. During the virtual hearing, the appellant appeared in person, whereas learned counsel, Mr. Omutelema, Senior Assistant Director of Public Prosecutions, appeared for the respondent. Both parties relied on their submissions. 15.This is a second appeal. Our jurisdiction is limited by dint of Section 361(1)(a) of the Criminal Procedure Code to deal with matters of law only and not to delve into matters of fact which have been dealt with by the trial court and re-evaluated by the first appellate court. For purposes of this section, severity of sentence is treated as a matter of fact. See Samuel Warui Karimi vs. Republic [2016] eKLR. 16.The appellant submitted that the mandatory nature of the life sentence imposed left no room for the learned trial magistrate to exercise his discretion in sentencing him; and relied on Maingi & 5 Others vs. Director of Public Prosecutions & Another (Petition No. E017 of 2021) (2022) KEHC 1318 (KLR) eKLR, which was cited with approval by this court in Joshua Gichuki Mwangi vs. Republic (2022) eKLR. He also relied on S vs. Malgas 2001 (2) SA 1222 SCA 1235, R vs. Scott (2005) NSWCCA 152 and this court’s decision in Dismas Wafula Kilwake vs. Republic [2019] eKLR, Eliud Waweru Wambui vs. Republic [2019] eKLR, and Yawa Nyale vs. Republic [2018] eKLR, wherein the courts proposed a departure from prescribed sentences imposed by legislation. 17.As such, he urged this Court to re-evaluate the evidence of this case, consider the circumstances therein and award a proper sentence. 18.Lastly, he submitted that the indefinite nature of the life sentence that was imposed is unconstitutional, harsh and inhuman; and relied on the reasoning in European Court of Human Rights in Vinter & Others vs. United Kingdom [Application Nos. 66069/09, 130/10 and 3896/10 [2016] III ECHR 317 [9 July, 2013], wherein it was stated that an indeterminate life sentence without any prospect of release or a possibility of review is degrading and inhuman punishment, and that it is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved. Subsequently, he urged that this Court has previously reduced various sentences in cases of defilement such as in Regan Otieno Okello vs. Republic, Cr. Appeal No. 189 of 2016 [2022] eKLR, wherein a mandatory sentence of twenty (20) years was substituted with a discretionary sentence of ten (10) years; and prayed that the same be applied in equal measure in this case. 19.Ultimately, he urged this Court to consider recent jurisprudential development and award a sentence that does not traumatize the appellant but gives him an opportunity to make up for his life. We note, however, that some of the authorities relied upon by the appellant preceded recent clarifications by the Supreme Court on sentencing under the Sexual Offences Act. 20.Mr. Omutelema opposed the appeal in its entirety and submitted that the first appellate court re-considered and re-evaluated the evidence on record, which the court observed was corroborated and unchallenged, and concluded that the conviction by the trial court was sound. 21.Counsel submitted that all the ingredients of the offence were established; that is, age of the complainant, fact of penetration, and the identity of the perpetrator who was the father of the complainant. He also submitted that the appellant’s defense was considered and the same was found to be a lie as it failed to displace the evidence on record. Further, he submitted that whilst he was aware that this court has declared life sentences whose duration cannot be determined as unconstitutional in Kennedy Okinyi Owino vs. Republic, Criminal Appeal No. 138 of 2018 [2024] eKLR, the circumstances of this case called for a severe sentence, the appellant’s mitigation notwithstanding for the following reasons: the complainant was four (4) years old at the time he was defiled and was vulnerable; the appellant being the complainant’s father committed a breach of trust by defiling him; the appellant forcibly removed the complainant’s inner clothes before defiling him; the defiling of the complainant led to serious injuries to his anus and rectum which was painful and made it difficult for him to stand or walk; the defilement left the complainant and the neighbours disturbed and traumatized; and the appellant lied about the incident and was not remorseful at all. 22.We have carefully considered the record of appeal, the rival submissions, and the authorities cited. 23.As we noted above, the appellant’s entire appeal is primarily against the sentence of life imprisonment that was imposed on him. 24.The appellant’s challenge to conviction was not pursued with any specificity. He did not point out what evidence this court should re- evaluate and re-consider save that his defense was not considered. In any event, looking at the entirety of the evidence adduced at the trial court and the re-evaluation and re-consideration of the same by the first appellate court, it is our view that the first appellate court properly re-evaluated and reconsidered the evidence on record; and we have nothing useful to add. We find that the appellant’s defense was considered by the two lower courts and the same did not rebut the allegation of defilement against him, as all the ingredients of defilement were sufficiently proved by the prosecution beyond any reasonable doubt. 25.We now turn to sentence, which is the principal focus of this appeal. The appellant argues that the sentence of life imprisonment is unconstitutional because it is mandatory, denies the trial court discretion to impose an appropriate sentence based on the circumstances of the case, and undermines the rehabilitative objectives reflected in the Judiciary Sentencing Policy Guidelines. 26.Before addressing that argument, we consider it necessary to state that we find no legal error in the decision of the High Court to invoke section 186 of the Criminal Procedure Code and substitute the appellant’s conviction from incest under section 20(1) of the Sexual Offences Act to defilement under section 8(1) as read with section 8(2) of the same Act. Section 186 permits a court to convict an accused person of an offence disclosed by the evidence even where that offence differs from the offence charged, so long as no prejudice is occasioned to the accused. In the present case, both the particulars in the charge sheet and the evidence adduced at trial clearly disclosed the offence of defilement of a male child aged below eleven years. The substitution did not alter the factual basis upon which the appellant defended himself, nor did it occasion any prejudice. We, therefore, affirm the learned Judge’s decision in that regard. 27.The appellant, thus, stands convicted of defilement under section 8(1) as read with section 8(2) of the Sexual Offences Act. Section 8(2) provides that a person convicted of defilement of a child aged eleven years or less shall, upon conviction, be sentenced to imprisonment for life. 28.The appellant urged us to find that such a sentence is unconstitutional for being mandatory and indeterminate. That argument, however, cannot succeed in light of the current state of the law. In Republic v Joshua Gichuki Mwangi, Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR), the Supreme Court clarified the distinction between mandatory and minimum sentences and held that the sentencing framework under the Sexual Offences Act is constitutional. The Court made it clear that the reasoning in Francis Karioko Muruatetu & another v Republic [2017] eKLR was confined to the mandatory death sentence under section 204 of the Penal Code and did not invalidate sentencing provisions under the Sexual Offences Act. That position was subsequently reaffirmed in Republic v Manyeso [2025] KESC 16 (KLR). 29.By dint of Article 163(7) of the Constitution, decisions of the Supreme Court bind this Court. We are, therefore, unable to accept the appellant’s invitation to declare unconstitutional a sentencing framework that the apex Court has expressly upheld. 30.Even if we were to consider sentence through the lens of proportionality and the objectives of sentencing, we would still find no basis to interfere. Sentencing is a judicial function guided by principle and informed by the circumstances of each case. The Judiciary Sentencing Policy Guidelines (2016), at paragraph 4.1, recognize that sentencing serves multiple objectives including retribution, deterrence, rehabilitation, restorative justice, community protection, and denunciation. A proper sentence must, therefore, reflect not only the offender’s personal circumstances, but also the gravity of the offence, the degree of culpability, and the harm caused to the victim. 31.The circumstances of this case disclose some of the most aggravating features known to criminal law. First, the complainant was a child of extremely tender years - approximately four to five years old – and, therefore, wholly vulnerable and incapable of self-protection. Second, the offender was the complainant’s own father: the person who bore the highest legal, moral, and natural duty of care, protection, and nurture. Instead of protecting the child, the appellant became the source of grave physical and psychological harm. Few offences represent a more profound betrayal of trust than sexual violence perpetrated by a parent against his own child. 32.Third, the physical injuries inflicted upon the complainant were severe. The medical evidence established rectal prolapse and tearing at the anal region, injuries so grave that the child could barely walk. The brutality of the assault, coupled with the complainant’s tender age, demonstrates violence of a particularly disturbing nature. 33.The appellant urged us to consider his rehabilitation and his plea for a second chance. Rehabilitation is indeed a central objective of sentencing and courts ought not to ignore the human capacity for reform. However, rehabilitation is not the only sentencing objective. In cases such as this, the imperatives of denunciation, deterrence, accountability, and the protection of children assume overwhelming significance. 34.Taking all the circumstances into account, we are satisfied that the sentence of life imprisonment imposed by the trial court and affirmed by the High Court was lawful, proportionate, and deserved. 35.In the result, the appeal against both conviction and sentence fails and is dismissed in its entirety. 36.Orders accordingly. DATED AND DELIVERED AT NAKURU THIS 26TH DAY OF JUNE, 2026.M. GACHOKA C.Arb, FCIArb.……………JUDGE OF APPEALJOEL NGUGI……………JUDGE OF APPEALMURUNGI B. KAIRARIA……………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR