https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9793

Kipkoech v Republic (Criminal Appeal E023 of 2025) [2026] KEHC 9793 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 9793 (KLR) Republic of Kenya In the High Court at Iten Criminal Appeal E023 of 2025 JRA Wananda, J July 3, 2026 Between Amos Kipkemboi Kipkoech Appellant and Republic Respondent (Appeal against the Judgment and Sentence delivered by Hon. E. Kigen – PM on 2/10/2024 in Iten Senior Principal Magistrate’s Court Criminal (Sexual Offences) Case No. E019 of 2024) Judgment 1.The Appellant was charged in the case referred to above with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, No. 3 of 2006. It was alleged that the Appellant, on 27/04/2024 and 28/04/2024 at night hours, within Keiyo North sub-County of Elgeyo Marakwet County, intentionally caused his penis to penetrate the vagina of MJ, a girl-child aged 12 years. He also faced the alternative charge of committing an indecent act with the same child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 by intentionally touching her vagina with his penis. 2.The Appellant pleaded not guilty to the charges and the case then proceeded to full trial in which the Prosecution called 5 witnesses. At the close of the trial, the Court convicted the Appellant on the main charge, and sentenced him to serve 20 years’ imprisonment. 3.Dissatisfied with the decision, the Appellant filed this Appeal by way of the Petition dated 21/07/2025 containing 10 wordy grounds, reproduced verbatim, as follows:i.That the Learned trial Magistrate erred in matters of law and fact by holding that the Prosecution had proved its case beyond reasonable doubt according to provisions of Section 107 of the Evidence act without supporting evidence and in view of the unresolved contradiction in the Prosecution case. Reliance is on the authority of William Kiprotich Cheruiyot Vs Republic (2021) where it was held the burden of prove lay with the Prosecution.ii.That the Learned trial Magistrate erred in matters of law and fact in founding this case on contradictory evidence. Nearly all the witnesses self contradicted themselves or contradicted each other and the same was used to convict and sentence the Appellant, the obvious example was the two sisters, the doctor among others in this case. These contradictions were material and goes to the root of this case and would urge the Court to reach the same decision and allow my Appeal on this ground.iii.That the Learned trial Magistrate erred in law and fact by making a finding that penetration had been proved while basing it on uncorroborated and inconclusive physical examination as medical examination was never carried out. lt is on record that the 1st doctor who first conducted the examination did not observe any injuries as correctly indicated in the medical notes and therefore the second doctor lied that there were bruises since he did not equally see the injury making his opinion in regard to penetration doubtful and unsupported.iv.That the Learned trial Magistrate erred in law and fact by holding that the appellant was positively identified as assailant, contrary to evidence adduced on how the complainant identified the Appellant. The assertion that there was a D-LIGHT on and then the torch of the phone being lit point to an afterthought which raises doubt on the lighting circumstances that were suitable for identification.v.That the trial Magistrate erred in law by not making a finding that the case lacked factual foundation as no incriminating evidence was presented during the Prosecution case that would link the Appellant to the alleged offence, its only suspicion of being a friend to the mother of the victim which can never be a basis of conviction and sentencing but or substantive evidence.vi.That the trial Magistrate erred in law and fact by convicting and sentencing Appellant based on incredible witnesses in this case. The first doctor who first saw the complainant was conflicted as he is the other person who accompanied the complainant's aunt to the hospital he had referred her, he was in a relationship with the aunty. The doctor on record was not credible by assessing the non-existent injuries as a grevious harm. The complainant was equally not credible and therefore Section 124 does not apply in her case for wrongly implicating the appellantvii.That the Learned trial Magistrate erred in law and fact by failing to award the Appellant the benefit of doubt that was raised during his case on the fact reasonable doubt was created over his involvement in the defilement act. The many mistakes by the Prosecutor introduced a serious doubt in the Prosecution case a benefit of which should have been passed on to him with an acquittal.viii.That the Honourable Magistrate erred in law and fact by not ensuring Section 33 and 43 of the Sexual Offences Act was complied with. Description of the surrounding circumstances and any form of coercion in the case was not accurately explained according to requirement of those provisions. The complaint did not exactly figuratively describe the circumstance of the incident, her version of the statement was simply unbelievable Considering the complainant shared beddings with her sister it was very unlikely the incident could go unnoticed.ix.That the trial Magistrate erred in law in not complying with its obligatory duty under Section 333 (2) of the Criminal Procedure Code that required him to take into account the period Appellant spent in remand custody while undergoing trial or alternatively ordering his sentence to commence from the date of his arrest.x.That the Learned trial Magistrate erred in matters of law and fact by not complying with provisions of Section 169 of the Criminal Procedure Code, determinations and the reasoning among other procedures of making a judgement were not considered. The omission is not curable under Section 382 of CPC and therefore fatal to this case. 4.I will now recount the testimonies and evidence presented before the trial Court. 5.Regarding the testimonies presented, the complainant, MJ, a minor, testified as PW1. Due to her age, which she placed at 12 years, she was taken through a voir dire examination upon which the trial Magistrate found that she understood the duty of oath taking and directed that she gives sworn evidence, which she then did. She then testified that she was a Grade 6 primary school pupil. She then testified that on Friday, 20/04/2024, her mother, MK, had gone to her own “mama” and left the complainant and her younger sister M, with the Appellant, their mother’s boyfriend, to care of them. She testified that the Appellant returned home at night, and they cooked and went to sleep. At this point, the complainant is recorded to have broken down and cried. After composing herself, she testified that the Appellant later came to where they (the complainant and M) were sleeping on the mattress and lay on top of her, he removed his clothes, including his trousers, and also the complainant’s pant, and inserted his penis into the complainant’s vagina, he instructed her not to scream or report to anybody, and threatened to strangle her if she screamed. She stated that M was there throughout and woke up when the Appellant finished, and that she had her mother’s phone which was switched off but when the Appellant came, they switched it on and used the light thereof to see, and that the Appellant left in the morning at around 4.00 am. 6.She stated further that this it was not the first time that the Appellant had defiled her, and that on the following Saturday, he came back at night and defiled her again. She testified that she later informed her aunt, LK who took her to hospital and later to the police, and that she was also examined and given treatment. She then identified her Certificate of Birth, P3 Form and other medical documents, and also identified the Appellant seated in Court. In cross-examination, she stated that the Appellant came at around 8.00 pm on that Saturday, that her mother left at 4.00 pm, and that he came after the complainant had already made food for supper. She confirmed that there was no lamp in the room but reiterated that the Appellant asked her to help him switch on the phone for light. She also reiterated thar M, her younger sister, was asleep during the act but she woke up after and that she heard the Appellant. She also agreed that after the Appellant left, herself and M woke up too, cooked tea and went to Mama K’s house, and also went to fetch firewood and returned at around 3.00pm, and further, that she did not tell anyone on that day about the incident. She also stated that on Sunday, the Appellant came at night at around 1.00 a.m. and defiled her again and on Thursday she informed her aunt. In re-examination, she stated that on that Sunday she was able to identify the Appellant by his voice since they spoke. 7.PW2 was the said, M, who introduced as MJ, 7 years old. Due to her age, she, too, was taken through a voir dire examination upon which the trial Magistrate found that she did not understand the duty of oath taking and directed that she gives unsworn evidence, which she then did. She then testified that she was a Grade 2 primary school pupil and lives with her aunt and that the complainant herein (PW1) is her sister. She stated that their mother left them (herself and PW1) at home and while they were sleeping on a mattress, the Appellant came and told the complainant that he will strangle her if she screams, that there was light from a torch, and she saw the Appellant do “bad manners” to the complainant, which act the complainant also confirmed to her in the morning. She stated that the Appellant left in the morning but returned at night and, again, came to their mattress where they were sleeping. She testified that the complainant reported the matter to their aunt, and that the Appellant usually came to their house as she was their mother’s friend. She then identified the Appellant seated in Court. 8.PW3 was LJK, who stated that the complainant (PW1) and her sister (PW2) are her nieces as they are her brother’s children, that they live in the same village, and that their father left about 2 years before to look for work and has never returned. She stated that sometime on 30/04/2024, she learnt from a neighbour that the children’s mother had left them under the care of her boyfriend and she therefore went to the village elder and reported that the mother had abandoned the children, upon whicg the elder asked her to take the children in, which she did. She stated that she went to check on the children and briefly left to go and purchase food but, on her return, she met the complainant on the way who told her that their mother had come while drunk and picked them up but the complainant had fled but PW2 went with the mother. She stated that she therefore took the complainant to her home but noticed that she looked disturbed, and after probing here, the complainant disclosed to her that the Appellant had defiled her on Saturday and again on Sunday, and threatened to strangle her if she reported the matter. She testified that having heard this, in the morning she took the complainant to the dispensary from where she was referred to Tambach where she was examined and confirmed to have been defiled, she later reported the matter to the police and was issued with a P3 Form, and on the following day, the Appellant was arrested by members of the public. Regarding the relationship between the Appellant and the complainant’s mother, she stated that the two lived together. She then identified the Appellant seated in Court. In cross-examination, she stated that she picked the children on the Wednesday following the acts of defilement committed on Saturday and Sunday, by which time the children had been left by their mother for 4 days, and that the complainant told her that the Appellant used to visit their home when their mother was present and also when she was not. 9.PW4 was Ernest Kiptoo, a Clinical Officer at Tambach Sub-County Hospital. He testified that he attended to the complainant on 3/05/2024 who was brought by two ladies who introduced themselves as her aunt and the aunt’s friend. He stated that the medical chit they brought did not show any injuries but upon examination of the complainant, he found bruises on her genitalia and that he conducted the examination 6 days after the alleged defilement. He also testified that other tests were not conducted to establish whether there was deposit of spermatozoa, but the hymen was broken, and he blamed the earlier doctor for contributing to the complainant not taking some tests. He then produced the Treatment Notes and P3 Form. In cross-examination, he agreed that the Appellant ought to have also been examined. In re-examination, he stated that the complainant was seen at Tambach 3 days after the alleged defilement but he examined her 6 days after the defilement. He agreed that it is because of examining the complainant outside 72 hours that he could not establish the existence of injuries, and also that after 6 days it is impossible to conclude evidence. He stated that the Appellant was also brought to the same medical facility at Tambach, but he advised that she be taken to Iten since it is an advanced centre. He however insisted that the earlier doctor found bruises and discharge, and that bruises are an indication of defilement. 10.PW5 was Police Corporal Irene Chelangat, from Tambach Police Station, the Investigating Officer. She testified that she received a report of the defilement on 2/05/2024 which report was made by the complainant’s aunt (PW3). She then recounted an account thereof as narrated to her by PW3 which was basically in the same terms as the testimony given by PW3 as already captured above. She testified that the complainant was first attended to at Kiwopsos Dispensary before she was taken to Tambach, and she was issued with a P3 Form. She stated further that the complainant was born on 25/06/2011, and named the Appellant as the perpetrator who was well-known to the complainant. She then produced the complainant’s Certificate of Birth, and stated that she has never spoken with the complainant’s mother, and that the Appellant was brought to the station by members of the public. In cross-examination, she stated that she also took the Appellant to the hospital but the doctor referred them to Iten. 11.After the Prosecution closed its case, the Court found the Appellant with a case to answer and placed him on his defence. He then gave sworn testimony, and did not call any other witness. 12.The Appellant thus testified as DW1. In his brief testimony, he simply denied that he committed the offence, and claimed that the witnesses contradicted themselves. 13.As aforesaid, by the Judgment delivered on 2/10/2024, the trial Court found the Appellant guilty, convicted him, and sentenced him to serve 20 years imprisonment. 14.I then gave the parties leave to file written Submissions. I have however only come across Submissions from the Respondent, dated 15/12/2025. I therefore trust that the Appellant relies on his said lengthy Grounds of Appeal already recounted. Respondent’s Submissions 15.On the issue of “penetration”, Prosecution Counsel Rachel Mwangi cited the complainant’s testimony and narration of how the Appellant defiled her and submitted that the testimony was corroborated by the medical evidence. Regarding “age”, she recounted the complainant’s testimony that she was born on 25/11/2025 and thus 12 years at the time of the incident, and submitted that the same was corroborated by the Certificate of Birth. Regarding “identification”, Counsel recounted the complainant’s testimony that the Appellant was her mother’s boyfriend, and that on the first night that the Appellant defiled her, she had her mother’s phone which she switched on to see, which testimony was corroborated by PW2, who also testified that there was light from a torch. Counsel therefore submitted that the Appellant was not a stranger to the complainant. 16.On the allegations of “contradictions” in the Prosecution witnesses’ evidence, she submitted that there were no material contradictions that could create doubts in the case. On the contrary, she submitted that the witnesses were credible and reliable and were not shaken in cross-examination. Regarding “sentence”, she submitted that under Section 8(3) of the Sexual Offences Act, the mandatory sentence upon conviction is 20 years, which sentence the trial Magistrate did not have the discretion to reduce. However, regarding the time spent in custody by the Appellant, she agreed that under the provisions of Section 333(2) of the Criminal Procedure Code, the trial Magistrate ought to have taken that period into account, which she placed at 1 month and 3 days as the Appellant was arrested on 3/05/2024 according to the Charge Sheet, and was released on bond on 6/06/2024. Determination 17.As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses (See Okeno vs. Republic [1972] E.A 32). 18.The issues that arise for determination herein are evidently the following:a.Whether the defilement charge against the Appellant was proved beyond reasonable doubt.b.Whether the sentence of 20 years imprisonment was justified. 19.On whether the charge was proved beyond reasonable doubt, it is trite law that for the offence of defilement to be established, 3 ingredients must be proved, namely, (i) age of the victim, (ii) penetration, and (iii) positive identification of the offender. In respect thereto, Section 8(1) of the Sexual Offences Act provides as follows:“ 8.(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 20.In this case, the charge sheet indicated the complainant’s age as at the date of the offence (the night of 27/11/2024 and 28/11/2024) as 12 years old. Since the Certificate of Birth indicates that the complainant was born on 26/06/2011, her age of 12 years, and thus a minor was proved. 21.On the issue of “penetration”, Section 2(1) of the Sexual Offences Act defines the term as “the partial or complete insertion of the genital organs of a person into the genital organ of another person.” 22.In this case, the complainant testified that the Appellant returned home at night, they cooked and went to sleep with her younger sister, PW2, that the Appellant later came to where the complainant and M were sleeping and lay on top of her, removed his clothes and also the complainant’s pant, and inserted his penis into the complainant’s vagina, that he then instructed her not to scream or report to anybody, and threatened to strangle her if she screamed. She stated that PW2 woke up when the Appellant had finished, and that she heard her mother’s phone which they switched on too see when the Appellant came. She testified further that on the next night, the Appellant again came at night and defiled her, and that she later informed her aunt, PW3, who took her to hospital and later to the police. PW2, the complainant’s 7 years old younger sister testified that herself and the complainant were sleeping at night when the Appellant came and told the complainant that he will strangle her if she screamed, that there was light from a torch, and that she saw the Appellant do “bad manners” to the complainant, which the complainant also confirmed to her in the morning. She stated that on the following night, the Appellant, again, came to where they were sleeping. 23.I have carefully considered the above testimonies and find them to be consistent, plausible, and believable. I find that the complainant and PW2, in spite of their young ages, gave vivid and descriptive accounts of the whole incident, which narratives were not shaken in cross-examination. The complainant’s recollection of the events of that day was quite detailed and graphic, and it is also not lost on me that the complainant gave the same narration to her aunt, to the police, to the medical staff, and also to the trial Court all on different occasions. 24.Regarding the medical evidence, I note that PW4, the Clinical Officer testified that he examined the complainant 6 days after the alleged defilement, and he agreed that it is impossible to establish conclusive evidence after such a long period of time. He stated that the optimum period within which examination can establish helpful evidence of defilement is 72 hours. He testified further that although the complainant was seen at Tambach 3 days after the alleged defilement, thus within the 72 hours window, the facility did not conduct all the relevant tests and did not, as such, establish whether there was deposit of spermatozoa. He thus blamed the medics at Tambach for contributing to the complainant’s not taking of some tests. Although he claimed that the medical chits from Tambach Hospital indicated that injuries were observed in the complainant’s genitalia, I have not seen any such findings in the document produced from Tambach Hospital. Although PW4 therefore made the entry in the P3 Form that he found bruises and discharge in the complainant’s genitalia, his testimony above regarding the failure to meet the 72 hours threshold casts doubts on his findings of the existence of bruises and discharge 6 days later. 25.Nonetheless, I note that PW4 found that the complainant’s hymen was broken. While this finding alone, without evidence of how recent sexual intercourse occurred, is insufficient to establish “penetration” noting that breakage of the hymen is known to also result from other causes, and not necessarily sexual intercourse, in this case, considering the testimonies given by the complainant and by PW2, it strengthens the allegation that “penetration” took place. Even if therefore the medical evidence was shaky, I would still find that “penetration” was established through the testimonies. In any case, I understood PW4 not to have meant that examination after 72 hours cannot at all, under any circumstances, establish any evidence of defilement. What I understood him to have said is that although examination after 72 hours can still can evidence of physical trauma such as deep tissue bruising, lacerations, tears, or healing abrasions which may remain visible for days or even weeks, such examination after 72 hours diminishes the weight of the results thereof. This is how I understood him. In the absence of any controverting or contradictory evidence therefore, PW4’s testimony that he found bruises and discharge may not therefore be outrightly dismissed. 26.Further in any event, regarding the failure to carry out the test to establish the presence of spermatozoa, the Court of Appeal, in the case of Mark Oiruri Mose v R (2013 eKLR, guided as follows:“….. In any event the offence is against penetration of a complainant and penetration does not necessarily end in release of sperms into the victim. Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence if spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated and penetration need not be deep inside the girl’s organ.” 27.The fact that no spermatozoa was found cannot therefore, by itself, mean absence of “penetration”. 28.I am therefore satisfied that the complainant’s account on the issue of “penetration” was consistent with not only the testimony of PW2, but to an acceptable extent, also consistent with the medical evidence on record, and was thus sufficiently corroborated. 29.The trial Magistrate, on the strength of the evidence before her, found that “penetration” was proved. Considering the state of evidence on record, as captured above, I cannot fault her for reaching that finding. She saw and heard the witnesses and thus had the advantage of studying their demeanour. As a finder of facts, she believed the complainant, PW2, and the Clinical Officer as her discretion allowed her to do. Since she relied on the material before her to reach her findings, she cannot be faulted for finding that the element of “penetration” was sufficiently corroborated and thus proved. I thus also overrule this ground of Appeal. 30.On the issue of “identification”, the Court of Appeal in the case of Cleophas Wamunga v Republic [1989] eKLR stated as follows:“Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant wholly depends or to a great extent on the correctness of more identifications of the Appellant which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification”. 31.In this case, the complainant testified that the Appellant was her mother’s boyfriend, and both the complainant and PW2 then testified that the Appellant frequented their house. The children’s aunt, PW3 also confirmed that she was aware of the children’s mother’s romantic relationship with the Appellant, and according to her, the two were actually living together. The Appellant was therefore well-known to the complainant and PW2. Both the complainant and PW2 also testified that they recognized the Appellant by way of the light emanating from a phone torch that they had in the room. The complainant also testified that she spoke with the Appellant and even during the act, the Appellant threatened to strangle her if she reported the incident. PW2 also corroborated this testimony. Their testimony was also that the Appellant spent quite some considerable time in the room from the time he walked in, undressed himself, and also undressed the complainant, committed the act, and even the aftermath. The children’s testimony is also that the Appellant did not leave immediately after he finished. According to the complainant, on the first night, he left the room at about 4.00 in the morning. It is therefore clear that the children had spent sufficient time with the Appellant to positively identify him. The identification of the Appellant in this case was therefore one of “recognition”, rather than that of a stranger. In respect to this nature of “identification” and its reliability, the Court of Appeal, in the case of Reuben Tabu Anjononi & 2 Others v Republic [1980] eKLR, stated that:“……. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. …………………….” 32.Although the Appellant has alleged the existence of contradictions and inconsistencies in the testimonies of the Prosecution witnesses, he did not, in my view, demonstrate any serious or material contradictions that could create doubt on the credibility of the witnesses. In making this finding, I am guided by the Court of Appeal decision in the case of Philip Nzaka Watu v Republic [2016] eKLR. I therefore find no material to justify faulting the trial Magistrate for finding that the Appellant was positively identified. 33.The primary testimony against the Appellant was that given by the complainant (PW1). That the law requires corroboration of testimony by minors where such minor is the sole or single witnesses is clear from Section 124 of the Evidence Act. However, there is the proviso to that very Section to the effect that, in cases of sexual offences, there need not be corroboration if the trial Court believes that the minor who happens to also be the victim told the truth and recorded its reasons. The Section and the proviso are premised as follows:“Notwithstanding the provisions of Section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that Section on behalf of the prosecution in proceedings against any person for an offence, the Appellant shall not be liable to be convicted on such evidence unless it is corroborated by other evidence in support thereof implicating him.”Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the Appellant person, if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 34.From the above, it is clear that the proviso to Section 124 of the Evidence Act allowed the Magistrate to convict on the sole evidence of the complainant being the victim of the sexual offence in this case, as she was satisfied that she was being truthful. In this case however, Section 124 may not even apply since, in my view, the complainant’s testimony was sufficiently corroborated by other evidence, particularly the testimony by PW2. I therefore find no reason to fault the trial Magistrate for reaching the finding that the Prosecution proved its case beyond reasonable doubt. 35.On the issue of “sentence”, the limits within which an appellate Court can interfere were restated by the Court of Appeal in the case of Bernard Kimani Gacheru v Republic [2002] eKLR, as follows:“It is now settled law, following several authorities by this Court and the High Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, the 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 the wrong material, or acted on the 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”. 36.In applying the above guidelines, I reiterate that Section 8(3) of the Sexual Offences Act provides as follows:“8 (3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” 37.In view of the above, it is clear that the sentence imposed by the trial Court, although the minimum prescribed, was within the law. The trial Court did not anywhere also state that it was imposing the sentence because it was the mandatory minimum prescribed. Nevertheless, it is also true that there has recently been emerging jurisprudence that strict adherence to mandatory minimum sentences should be discouraged and that Courts should retain the discretion to depart therefrom where circumstances allow. This was the ratio decidendi that was understood by many to have come out of the Supreme Court decision in the case of Francis Karioko Muruatetu and Another vs Republic [2017] eKLR, a case of murder. On the strength of the Muruatetu reasoning, the High Court, and even the Court of Appeal, routinely reviewed mandatory minimum sentences imposed for different offences other than murder, including for sexual offences and robbery with violence. However, by the clarification made by the same Supreme Court in its subsequent directions given in Muruatetu & Another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions), it made it clear that Muruatetu only applied to murder cases, and not to any other type of case, not even sexual offences. 38.Recently, the Supreme Court reiterated the above directions when dealing with an Appeal emanating, as herein, under the Sexual Offence Act. This was in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment). In that case, the Supreme Court overturned the decision of the Court of Appeal which had applied the Muruatetu reasoning in setting aside the mandatory minimum sentence of 20 years imprisonment imposed on an Appellant for a defilement offence. 39.In view of the decision and guidelines expressly set out by the Supreme Court as above, this Court will be acting ultra vires were it to set aside the sentence of 20 years imprisonment imposed herein, on the sole basis that the same, being a minimum sentence stipulated by statute, is unconstitutional. As clearly spelt out by the Supreme Court, Muruatetu is not applicable to cases under the Sexual Offences Act. 40.My above observation does not however mean that I cannot determine the issue whether the sentence was manifestly excessive or harsh, which I now proceed to do. 41.The Supreme Court, in the same Muruatetu case, also guided that, in re-sentencing by the High Court, the following mitigating factors would be applicable;(a)age of the offender;(b)being a first offender;(c)whether the offender pleaded guilty;(d)character and record of the offender;(e)commission of the offence in response to gender-based violence;(f)remorsefulness of the offender;(g)the possibility of reform and social re-adaptation of the offender; and(h)any other factor that the Court considers relevant. 42.The sentence meted out on an offender must therefore be commensurate to his blameworthiness, and before settling on a sentence, the Court must consider the facts and the circumstances of the case in its entirety. In restating the above principles, the Court of Appeal in the case of Thomas Mwambu Wenyi Vs Republic (2017) eKLR quoted the decision of the Supreme Court of India made in the case of Alister Anthony Pereira Vs State of Mahareshtra where it was held as follows:“ 70.Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no strait jacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. 71.The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudenceAs a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.” 43.Similarly, in the case of Daniel Kipkosgei Letting Vs. Republic [2021] eKLR, the Court of Appeal stated as follows:“…………. we observe that the purpose and objectives of sentencing as stated in the Judiciary Sentencing policy should be commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to. ……..” 44.Applying the above principles to the facts of this case, I note that the Appellant was given the opportunity to mitigate, and he made representations thereon. I also consider that sexual offences, especially defilement are treated as serious offences under Kenyan law and the society at large, and are thus always severely punished. It was upon the trial Court to impose a sentence that is proportionate to the offence committed. In this case, the Appellant preyed on a young 12-year-old girl and stole her innocence. This is totally unacceptable. The complainant will definitely be traumatised for the rest of her life by the ordeal. Although the Appellant is still in his middle-ages with his whole life ahead of him, the offence he committed is serious. I thus do not find any “mitigating factors” that would justify the extension of any sympathy to the Appellant who has not even shown any remorse. Considering the above circumstances, I agree that the Appellant merited a stiff sentence and I find that the 20 years prison term was proportionate and justified. For the said reasons, I find no reason to interfere with the sentence. Final Order 45.In the end, the Appeal fails in its entirety, and it is hereby accordingly dismissed. 46.However, in computing the period to be served in prison, in accordance with the provisions of Section 333(2) of the Criminal Procedure Act, the period between 3/05/2024 (date of arrest) and 6/06/2024 (date of release on bond) spent by the Appellant in custody during the trial, shall be deemed as part or portion of the prison term already served. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JULY 2026........................WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:N/A for the AppellantMs. Mwangi for the StateCourt Assistant: Brian Kimathi