https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6380

Kimani v Republic (Criminal Appeal E061 of 2025) [2026] KEHC 6380 (KLR) (7 May 2026) (Judgment) Neutral citation: [2026] KEHC 6380 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E061 of 2025 DKN Magare, J May 7, 2026 Between Edward Kamau Kimani Appellant and Republic Respondent (Being an appeal from the Judgment of 19.05.2025 by the trial court, Hon. M. A. Okullo (Resident Magistrate) in Murang’a PMCSO No. E814 of 2024.) Judgment 1.This appeal arises from the Judgment of 19.05.2025 by the trial court, Hon. M. A. Okullo (Resident Magistrate) in Murang’a PMCSO No. E814 of 2024. 2.The appellant was charged with the following:i.Indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. The particulars are that on 18.10.2024 at 11.00 am in Murang’a East Sub-County within Murang’a County, the Appellant unlawfully and intentionally touched the penis of PMW, a child aged 9 years.ii.Indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. The particulars are that on 19.10.2024 at 13.30 am in Murang’a East Sub-County within Murang’a County, the Appellant unlawfully and intentionally touched the penis of CMM, a child aged 12 years old.iii.Indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. The particulars are that on 19.10.2024 at 11.00 am in Murang’a East Sub-County within Murang’a County, the Appellant unlawfully and intentionally touched the penis of WMN, a child aged 14 years.1.The Appellant was arraigned in court on 22.10.2024 and he denied the charges. A plea of not guilty was consequently recorded. He was granted Ksh 400,000/= bond with surety of a similar amount. He did not raise the bond amount and was remanded in prison custody. 4.The trial court considered the case and rendered judgment on 15.05.2025. The Court found the Appellant guilty and convicted him of the offence of defilement and sentenced him to 10 years imprisonment for each count, which were to run concurrently, effective 22.10.2024. 5.The Appellant, aggrieved, lodged this appeal. The Petition of Appeal raised 5 grounds as follows:a.That the trial magistrate erred in law and fact by convicting and sentencing the appellant on a unsubstantiated, contradictory and inconsistent evidence.b.That the Honourable trial magistrate erred in law and in fact by not considering the appellant’s mitigations thereby going short of the sentencing guidelines principles.c.That the trial magistrate erred in law and fact by not considering the appellant’s plausible defence.d.That the trial magistrate erred in law and fact by sentencing the appellant on minimum mandatory 10 years sentence for each count and thus errounously ordering the same to run consecutively without proper consideration of the circumstances of the case.e.That the trial magistrate erred in law and fact by convicting and sentencing the appellant against his absolute right to a fair trial. Submissions 6.The appellant filed submissions dated 15.11.2025. He submitted that the investigating officer did shallow investigations and did not visit the scene. He maintained that his evidence was cogent and consistent. He questioned the use of uncorroborated evidence of minors. 7.The respondent filed submissions dated 16.12.2025. They submitted that there was no contradictory evidence tendered. The question of being framed was not raised in cross examination. They refuted claims that there were witnesses who were not called. Reliance was placed on section 143 of the Evidence Act. 8.They submitted that the court examined defence evidence in paragraph 4 of its judgment. They submitted that the sentences were mandatory. The question of consecutive sentence, was interpreted in the case of Peter Mbugua Kabui V Republic [2016] eKLR. Evidence 9.PW1 was the minor, third complainant, WMN. Voire dire was carried out and found fit to give evidence on oath. He stated that on 19.10.2024 he was in school. The appellant told him to go to his house and told the minor to seat on him. The appellant took his hands and held his penis to see if it has seeds. The appellant held the minor’s private parts. After this touching the minor’s penis, he gave the minor kangumu. The minor lied to the appellant that he was going to the toilet and ran away. On cross examination, the minor stated that it was not the first time he was in the house. 10.PW2 was the minor, first complainant, JMM. Voire dire was carried out and found fit to give evidence on oath. He stated that he was 9 years old but does not know the exact date of birth. He knew the appellant, who is a teacher but did not know where he taught. The appellant called the second respondent and asked the second respondent to sit on him and put his hand inside the second complainant. He finished with CMM and started with PW2. He called them again and touched them and gave them his phone. When he went to school on Monday, he told CMM that he was not going to go to the appellant’s house. The appellant had told them that he was to kill them if they told someone. 11.He stated that WMN was in grade 8, CMM was in grade 6 and he was in Grade 4. He identified his birth certificate. On cross examination he stated that he was in the appellant’s home on Friday and had not been there before. They stated that they went to the house and he was alone but some day they found a woman in the house. 12.PW3 was the minor, second complainant, CMM. Voire dire was carried out and found fit to give evidence on oath. He stated that he was in grade 6. They went to the appellant’s house with JMM and WMN, all minors to the appellant’s house. The appellant would touch the private part “natumia kususu”. The appellant was looking for seeds that were in the stomach. The appellant touched the penises of all the three complainants. The appellant had been touching the appellant’s penis. 13.He did not report to anyone, he identified the appellant as the appellant had warned them that he did not want the stories. The minor was born on 26.07.2012. On cross examination, he stated that he sat on the appellant while outside. There were at a table. The minor saw the wife who would come from time to time. The appellant taught the minor mathematics. He stated that Mwangi and the witness sat on the appellant. The court noted the demeanor of the witnesses. She noted that PW2, was bold and articulate and answered boldly while PW1 were timid and shy. 14.PW4 was SBM, the mother of PW2. The minor told him that the teacher, the appellant, had put his hands in his trouser, touched sehemu yake ya kususulia. When she wanted to cane the minor, the minor told her that he is always with PW1 and PW3. She identified the appellant in the dock, though she did not know him before. She identified the birth certificate showing PW2 was born in 2015. 15.On cross examination she stated that she had never been in the appellant’s house. She never went to his home with the appellant’s cousin. She declined to name the person who told her what the appellant was doing. 16.CPL Stephen Makau was the in-charge of Nyakehia Police Station Patrol Base. A report was made on 21.10.2023 at 1200hours by PW4, accompanied by PW2, saying that she had visited someone who warned her not to allow her children in the appellant’s house. JMM had been going to the appellant’s home for some time. The appellant would require the complainants to seat on his lap if they wanted him to give them a phone. He inserted his hands in the boys’ trousers touching the penises to see if there are seeds. They found the minors who had been indecently assaulted and recorded their statements. He identified the appellant at the dock. On cross examination, he stated that the incident did not happen on that day. The children did not take photos. 17.The court placed the appellant on his defence. He gave sworn evidence. He stated that on 22.10.2024 he was arrested while going on his business. He saw the three children see him and hide. He did not know the children before. 18.On cross examination, he stated that on 19.09.2024 at 1.00 pm he was at home. On 18.10.2024 he was at home around 5 pm. The minors do not come to his home and he did not touch their private parts. She knew PW4 from seeing her. She had once borrowed firewood and her mother sells milk and she also had borrowed firewood. And he refused to give them he stated that the other children were brought to add weight. He said he did not know why he was falsely accused. Analysis 19.This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 20.On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra], the East Africa Court of Appeal stated on the duty of the court on a first appeal:An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] 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, [1958] E. A. 424. 21.The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. 22.Brennan addressed the standard of proof required in such cases, in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that:The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 23.Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. 24.The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:382:subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. 25.Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case.Appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 26.The offences the appellant was charged with, are set out in section 11(1) of the constitution. The same provides as follows:(1)Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years. 27.Section 2 of the Sexual Offences Act, defines an indecent act to mean:Any unlawful intentional act which causes-a.any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration;b.exposure or display of any pornographic material to any person against his or her will; 28.The indecent act was shown by the age of the minors which was proved and holding of the three minor’s susus. The court noted the demeanor of the witnesses and found them to be credible. The court relied on section 124 of the Evidence Act. The said section provides as follows:Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, 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. 29.The court found that there was no indication whatsoever that the minors had an intention to frame the accused. The reasons were given by the court that heard the witnesses. The court analyzed evidence and stated that there was no evidence of denial of firewood. The court had the advantage of seeing the demeanor of the children and found them consistent and truthful. 30.In regard to contradictions and inconsistence, the court cannot find any. Not every kind of inconsistency matters. They must be of such magnitude that they affect the veracity of evidence. There must always be room given for the human interpretation of events and recollection. Even in words the court must give room for lexical ambiguities and variances in understanding and memory. In the case of Philip Nzaka Watu vs. Republic [2016] eKLR, the Court of Appeal held that:The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question. 31.Consequently, it was the primary duty of the trial court, to carefully analyze the contradictory evidence and determine which version of evidence, on the basis of judicial reason, it could prefer. However, the evidence of the complainants was consistent. It is important to note that parties did not go to the appellant at the same time all the time. In Erick Onyango Ondeng’ vs. Republic [2014] eKLR, the Court of Appeal held that:The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honoured devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See OKENO VS Republic (1972) EA 32). It is in the above context that this Court has said time and again that it will defer to and respect findings of fact by the trial court as affirmed by the first appellate court after due re-evaluation and analysis, because the second appellate court operates from the distinct advantage of not having seen or heard the witnesses. This Court will therefore not interfere with findings of fact by the two courts below unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole, the courts below were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law. 32.However, a higher magnitude of contractions, unless satisfactorily explained, will usually but not necessarily lead to the evidence of a witness being rejected. As was noted in Twehangane Alfred vs. Uganda, Crim. App. No. 139 of 2001, [2003] UGCA, 6:With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case. 33.There is no contradiction that was material that was placed before the court. Further the court considered the defence. There was no evidence on what the appellant did on 18.10.2024 at 11.00 am, 19.10.2024 at 13.30 pm and 19.10.2024 at 11.00 am. The children placed him in his house with them. On cross examination the appellant admitted having been in the locus in quo. I therefore dismiss the appellant’s defence. The issue of the firewood was not put to witnesses at the inception of the case. 34.In any case none of the boys had any grudge with the appellant. In particular he tried only to answer questions in terms of the second complainant. Nothing was said of the other complainants. The age of the minors was proved as well as the indecent acts. The appeal on conviction is accordingly dismissed. 35.I now turn to the question of sentence. In the case of Peter Mbugua Kabui v Republic [2016] KECA 713 (KLR), the court of appeal held as follows:The principles upon which an appellate Court will act in exercising its discretion to review or alter a sentence imposed by the trial court are now old hat. The predecessor of this Court, in the case of Ogolla s/o Owuor vs Republic, [1954] EACA 270, pronounced itself on this issue as follows:-"The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors”. To this, we would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case (R - v- Shershowsky (1912) CCA 28TLR 263)." See also Omuse - v- R (supra) while in the case of Shadrack Kipkoech Kogo - vs - R., Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus:-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)”In the more recent case of Kenneth Kimani Kamunyu -vs- R. (2006) eKLR, this Court reiterated this principle and stated that an appellate Court can only interfere with the sentence if it is illegal or unlawful. 36.The nature of sentences under the Sexual Offenses Act is circumscribed. This particular offence under section 8(1) and (2) of the Sexual Offences Act provides for a mandatory sentence of life imprisonment. The question of such sentences was addressed in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [supra] where the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] posited as follows:11.Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed12.Before Kenyan courts could determine whether or not the prevailing trends and decisions were persuasive, there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. That was the Supreme Court’s approach and direction in Muruatetu, which had to remain binding to all courts below.13.The Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. That approach was problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below. 37.Further, the same position was reiterated by the supreme court in its decision in Republic v Manyeso [2025] KESC 16 (KLR), where it stated as follows:Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution. Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence:94.We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature.95.We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.96.We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing.65.From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts. 38.The sentence given was the minimum statutory sentence and I see no manner in which the trial court can be said to have granted an excessive sentence. There is no merit in appealing on the mandatory minimum sentences. The last aspect is the question of concurrent and consecutive sentences. 39.Section 37 of the penal code provides for cumulative sentences as follows:Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence, other than a sentence of death, which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or any part thereof:Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence under subparagraph (i) of paragraph (c) of subsection (1) of section 28 or of any part thereof. 40.The foregoing is crystalized in the case of Peter Mbugua Kabui v Republic [2016] eKLR, where the Court of Appeal held that:As a general principle, the practice is that if an accused person commits a series of offences at the same time in a single act/transaction a concurrent sentence should be given. However, if separate and distinct offences are committed in different criminal transactions, even though the counts may be in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment.” In the circumstances the appeal against the conviction and sentence is dismissed. 41.This also finds home in the sentencing policy guidelines 2023, which provide as follows on consecutive or concurrent sentences:2.3.24Aconcurrent sentence will normally be appropriate where the offences arise out of the same incident or facts. E.g., poaching of several animals that vary in the degree of protection they are afforded under the law; a burglary ‘spree’ of several properties committed in one night; fraud and associated forgeries, or a dangerous driving incident where multiple victims are injured as a result of one offence of dangerous driving e.g., driving into a bus stop.2.3.25Aconsecutive sentence will normally be appropriate where the offences arise out of unrelated facts or incidents e.g., attempting to obstruct the course of justice in relation to an unrelated offence; where the defendant is convicted of dealing in drugs and also possession of a firearm upon arrest – the firearm offence is not an intrinsic part of the drugs matter and requires separate recognition, or where the accused commits a theft on one occasion and an assault on a different victim on another occasion.2.3.26Aconsecutive sentence may also be appropriate where the offences are of the same or similar kind but where the court is of the view that a concurrent sentence will not sufficiently reflect the overall criminality e.g., assault of a police officer whilst trying to evade arrest for the original offence; assault of the same victim committed in the context of domestic violence or where there are sexual offences against the same victim.2.3.27Other considerations that apply include the following:i.Where an accused person commits an additional offence during the operational period of a suspended sentence, and the court decides to activate the suspended sentence, the additional sentence should normally be consecutive as it will have arisen out of separate facts.ii.Where consecutive sentences are to be passed, the court must add up the sentences together and then consider if the total is just and proportionate. A downward adjustment can then be made. See Part V and the GATS.iii.Where sentencing multiple offenders who each have differing levels of culpability based on their role in the offence, any downward adjustment must be applied by the same proportion for each accused person so that the lead offender can be clearly identified.iv.Where several offences are all imprisonable but none of the individual offences merit a custodial sentence, the custody threshold may be crossed by reason of multiple offending.v.Indeterminate sentences should generally be ordered to run concurrently. In the absence of parole or similar mechanisms, it is not practicable at this stage to advise on the application of either determinate or indeterminate sentences imposed after the passage of a previous indeterminate sentence. The general principles of proportionality should be applied. 42.The appellant committed this offence on three distinct persons. The offences were thus not part of a series but three different penises were held. They were on three different minors. The appellant deserves the consecutive sentences. The appeal on sentence is accordingly dismissed. Determination 43.In the upshot I make the following final orders:a.This appeal is dismissed.b.14 days right of appeal.c.File is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 7TH DAY OF MAY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Appellant presentMs. Wambani for the statePC Pius Kimathi presentCourt Assistant – Michael/Martin