https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8019

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ITEN** **CRIMINAL APPEAL NO. E012 OF 2025** **SIMEON KIPLIMO *ALIAS* JUSTUS……………………………………………….APPELLANT** **VERSUS** **REPUBLIC…………………………………………………..……………………..RESPONDENT** **(*Appeal from the Judgment dated*** ***3/04/2025 and sentence delivered in Iten SPM Court Criminal Case No. E028 of 2024 by Hon. V. Karanja - PM*)** **JUDGMENT** 1. This Appeal arises from the conviction and sentence of the Appellant in the said criminal case in which the Appellant was charged with the offence of incest contrary to **Section 20(1)** of the [**Sexual Offences Act**](https://new.kenyalaw.org/akn/ke/act/2006/3)**.** The particulars were that on 22/06/2024 at around 1800 hours at **[………….]** village, Nerkwo sub-location within Marakwet West Sub-County, Elgeyo Marakwet County, he caused his penis to penetrate the vagina of **MJK**, a child aged 11 years, who was to his knowledge, his grand-daughter. He was also charged with the alternative offence of committing an indecent act with the same child, contrary to **Section 11(1)** of the same Act by touching the child’s vagina with his penis. 2. The Appellant pleaded not guilty, and the case thus proceeded to full trial wherein the Prosecution called 6 witnesses. After close of the Prosecution case, the trial Court found the Appellant as having a case to answer. The Appellant, in his defence, testified for himself and also called one other witness. After the close of the hearing, the trial Court, on 3/04/2025 as aforesaid, convicted the Appellant on the main charge and sentenced him to serve 45 years imprisonment. 3. Aggrieved by the decision, the Appellant filed this Appeal on 17/04/2025 through **Messrs Tarigo & Co. Advocates**. The following 7 grounds were presented 4. **The Learned trial Magistrate erred in law and fact by failing to consider the evidence of the Appellant on merit.** 5. **The Learned trial Magistrate erred in law and fact by failing to consider the nature of the offence and the circumstances under which the Appellant was operating at the time the offence occurred.** 6. **The Learned trial Magistrate erred in law and fact by failing to consider the fact that the Prosecution had not proved their case beyond any reasonable doubt.** 7. **The Learned trial Magistrate erred in law and fact by failing to consider the fact that the Prosecution evidence (***sic***) were contradicting themselves.** 8. **The Learned trial Magistrate erred in law and fact by failing to consider the Appellant’s defence objectively.** 9. **The Learned trial Magistrate erred in fact and law by failing to consider that the Appellant was in fact not at the scene where the defilement occurred and the same was corroborated by one witness.** 10. **The Learned trial Magistrate erred in law and fact by convicting the Appellant and by sentencing him to serve 45 years which is too harsh for the Appellant considering the facts of the case and that he is a first offender.** 11. Regarding the witness testimonies, **PW1** was the minor (complainant) **MJK**, who, due to her tender age, was taken through a ***voire dire*** examination upon which the trial Magistrate found her to understand the meaning of taking an oath and the duty of telling the truth, and as such, allowed her to give sworn evidence, which she did. In her testimony, she stated that she lives with her grandmother and uncle, she was 11 years old, born on 31/07/2013 as indicated in her Certificate of Birth, and that she was a Grade 5 primary school pupil. She testified that on 22/06/2024 at 6.00 pm, she was alone harvesting vegetables at the farm when the Appellant (her grandfather) came to the farm, carried her and took her to a nearby house where he removed his clothes and her trouser and pant, spat saliva on his two fingers and inserted them into her “***thing used for urinating***”, and then also put “***his thing for urinating into”*** her ***“thing used for urinating***”. She testified further that the Appellant put the fingers 3 times into her vagina and he kept putting saliva many times. She also stated that she tried to scream but the Appellant covered her mouth, and she bit him and took a “***mwiko***” (wooden cooking stick) and hit him with it. She testified that the Appellant had made her lie down and he slept on his side, and that her uncle, **EK (PW3)**, found them. She stated that she then went and informed her grandmother about the incident after which she was taken to hospital where she was issued with a P3 Form and Post Rape Care (PRC) Form, which she identified together with photographs of the house (scene of crime). She also identified the Appellant seated in Court. 12. **PW2** was **Philemon Kitony**,a Clinical Officer from the Iten County Hospital. He testified that the minor was brought to the facility on 24/06/2024 with a history of incest. He stated that on examination, she noted that the minor’s minora and majora were inflamed, and hymen partially torn, the penetrating object appeared to be recent, and the vagina was open by 1 centimeter. He stated further that there was no discharge, and that laboratory results revealed numerous epithelial cells and a few pus cells, but no spermatozoa. He testified that his finding was of an inflammation with recent partial vagina penetration, and he then produced the Post Rape Care and P3 Forms. In cross-examination, he stated that the offence was committed on 22/06/2024 and the minor was examined on 24/06/2024, as such, within 72 hours. He then explained that full penetration can extend to the cervix while partial penetration, as in this case, is seen at the opening of the vagina. 13. **PW3** was **EK**.He testified that on 22/06/2024, he went home and while patrolling the garden at around 6.00 pm, he pushed the door open and found the Appellant, who is his father’s brother, lying on his side half-naked, while holding the minor, upon which he ran home and reported the matter. In cross-examination, he stated that the minor was not screaming, but her clothes were pulled up, and that the incident happened in his (**PW3’s**) house. 14. **PW4** was **SK**,who testified that on 26/03/2024 at mid-day, a boy came and informed him that “something had happened”, namely, that the Appellant had defiled a child. He stated that he went and informed ***gogo*** (grandmother) who screamed and called other women who came and examined the minor, they screamed and they went and arrested the Appellant, and the minor was taken to hospital. He then identified the Appellant seated in Court whom he stated, was his uncle. 15. **PW5** was **GC**, the minor’s mother who testified that the minor was born on 3/07/2013. She stated that on 22/06/2024, she had left her children with her grandmother as she went to farm from Sunday to Sunday when she received a phone-call from her brother **J** informing her that she was required back home home as the grandfather had defiled the minor who was in hospital. She stated that **J** told her that the Appellant had put his saliva into his fingers and inserted them into the minor’s vagina. He stated that the Appellant is his father’s brother and she then identified him seated in Court. In cross-examination, she stated that the minor told her that she was harvesting vegetables when the Appellant came and carried her, covered her mouth, and took her to the kitchen. 16. **PW6** was **Police** **Corporal Ann Wafula**, from the Chebiemit Police Station, the Investigating Officer in this case. She testified that on 24/06/2025 she had returned to the station from Court duties at around 4.00 pm when she found people at the station whom she was informed had come to report a case of defilement. She testified that she recorded the minor’s statement, who told her that she had gone to look for vegetables on 22/06/2024 at around 6.00 pm when the Appellant came and carried her, slapped her, and covered her mouth to stop her from screaming. She stated that the minor told her further that the Appellant took her to the kitchen where he undressed her, spat saliva into his two fingers and inserted them inside her vagina before inserting his penis, defiled her and then released her. She testified further that the minor informed her parents on 23/06/2024 about the incident after which the police arrested the Appellant and charged him in Court. She also stated that she visited the scene and took photographs, and that the Appellant is the minor’s grandfather. She then produced the photographs and the minor’s Certificate of Birth. In cross-examination, she retracted the part of her testimony that the Appellant slapped the minor. 17. At this point, **Mr. Tarigo Advocate** came on record for the Appellant. He then applied for recalling of. The Application, being unopposed, was allowed and witnesses recalled. 18. **PW2**, **Philemon Kitony**,the Clinical Officer, when he returned, reiterated that the penetration in this case was partial rather than full length, and agreed that in children, inflammation of the genitalia can be caused by penile penetration, or fingers, or insertion. He however ruled out fingers’ insertion in this case as the reason for the signs of penetration observed on the minor’s genitalia during examination. He stated that this is because of the redness in the external area yet children cannot withstand the pain of breaking of the hymen. Regarding the laboratory results, he agreed that he had no documentary evidence for the same in Court. 19. **PW1**, the minor, **MJK**, when she returned, stated that the Appellant is a brother to her grandfather. She reiterated that the Appellant came to her while she was at the farm looking for vegetables. She also stated that it was getting dark, the Appellant slapped her and although she wanted to scream, she could not do so because he covered her mouth. She also stated that the house where the Appellant carried her and defiled her belonged to one **E**, presumably **PW3**, who was not however in the house at that time, but turned up during the incident, and found the Appellant in the act when he opened the door. She also reiterated that she took a cooking stick and hit the Appellant with it, and stated that she then went home without telling anyone about the incident. In conclusion, she stated that it was her first time to experience sexual intercourse, and that she was walking in pain after the act. 20. **PW3**, **EK**,on his return, reiterated that the Appellant is his uncle, younger brother to his father. He stated that on the date of the incident, 22/06/2024, he left his house at about 8.00 am and went to work in his farm, which he did up to about 12.00 pm when he went to visit his cousin and returned home at around 6.00 pm. He stated that he had gone to pick a sweater in the kitchen in his house with his “shopping” items when he opened the door and found the Appellant and the minor on the floor, side by side, with the minor’s skirt lifted up, although the Appellant had his clothes on and he did not see the pant. He denied that it was already dark, and stated that the sight he saw shocked him and he left and went to inform relatives. He agreed that the photographs produced as exhibits do not show the scene as they show the inside of the house as dark. In re-examination, he stated that he saw the Appellant on top of the minor. 21. **PW4**, **SK**,on his return, reiterated that the Appellant is his father as they share the same grandfather. He stated that on 22/06/2024, **PW3** came to his house at around 8.00 am and told him that he had found the Appellant defiling the minor in **PW4’s** house 22. **PW5**, **GC**, the minor’s mother, when she returned, stated that the Appellant is her uncle, her father’s brother. She stated that she was not at home on the date of the incident, 22/06/2024, and that she had left the minor with her mother, the minor’s grandmother, whom she however agreed, did not record a statement. 23. **PW6**, **Police** **Corporal Ann Wafula**, when she returned, stated that the photographs she had produced as exhibits were taken by herself using her phone, and she then took them to the Scene of Crime expert to process since she is not an officer gazetted to do so. 24. At this point, **Mr. Tarigo** applied for Witness Summons to issue to the Scene of Crime Officer to come and testify on the photographs, which Application was allowed. He however later changed his mind and dropped the quest for that witness to be called. As such, he closed the defence case. 25. The trial Court having found him with a case to answer as aforesaid, the Appellant, in his defence, testified as **DW1**, and gave sworn evidence. He termed the charges as false and testified that on the said 22/06/2024, he left his home at around 6.30 am when he went to a farm belonging to one Dorcas (Mama Mercy) to plough, and that he was with one Benjamin Chemweno Kibet (**DW2**) and Jacob Kiplagat. He stated that they left the home at around 5.05 pm and went to the next home to take alcohol where they stayed until about 7.30 pm and he reached his home at around 8.30 pm, upon which he bathed and slept for the night. He stated that it is only on the next day at about 1.30 pm after he had run some errands and done some work that some boys came and told him that he was needed at one Kimutai’s house, that he accompanied them to the house where he found a large crowd, and that the Chief came and escorted him to the police station. He described the boys as the sons of his brother with whom he had a land dispute. In cross-examination, he agreed that the minor was 11 years old, and stated that the house shown in the photographs produced in evidence belongs to his son. He then reiterated that he was not in the area on the material day. In re-examination, he claimed that he was framed for the offence. 26. **DW2** was one **Ben Chemueno** who also gave sworn evidence. He testified that on 22/06/2024, he accompanied the Appellant to a farm belonging to one Dorcas to perform casual work where they worked from 8.00 am to 5.00 pm, after which they went together to another home where they took more alcohol and parted at around 7.00 pm. About the land dispute alleged by the Appellant, he stated that he knew about it. In cross-examination, he stated that he knew about the land dispute because the Appellant had always told him about it. 27. When the matter came up on 5/11/2025 for directions, **Mr. Tarigo Advocate** applied to cease acting for the Appellant, which Application I allowed. Henceforth, the Appellant represented himself. 28. I then gave the parties leave to file Submissions. I have however only come across the Appellant’s lengthy handwritten Submissions dated 9/12/2025. Despite granting the State (Respondent) more time to file its Submissions, none seems to have been so filed. **Appellant’s Submissions** 1. The Appellant, perhaps because of being a layman not familiar with what is required in Appeals of this nature, filed very lengthy Submissions, a big part whereof contains matters or arguments not relevant or material to the proceedings before Court, or mere repetitions and/or duplications. 2. On matters that I deem relevant, which I have tried my best to summarize, he basically submitted that the minor’s testimony should not be believed because it contained contradictions such as who she lives with, or she was with at the time of the offence. He also wondered how the minor claims that she walked home yet she also claims that she was in pain, and also that she did not tell anyone about the incident. He also discredited the allegation that the minor’s uncle found him in the act, wondering how come that discovery did not elicit any reaction from the uncle such as a struggle or raising of an alarm to attract neighbours. He also wondered how he could have committed the act while both he and the minor were lying side by side. He also submitted that the alleged signs of penetration observed by the medic could have arisen from any other cause, not necessarily penile penetration. He doubted how the penis of an adult person like him could penetrate the vagina of an 11-years old girl and not cause serious damage, and also highlighted the medic’s testimony that the laboratory test results were not produced, and also that no spermatozoa was noted. He also suggested that the damage to the minor’s genitalia could have been caused by the grandmother who it was alleged examined her, and also pointed out the uncle’s testimony on one part, that he found the Appellant on top of the minor, and on the other, also stating that they were lying side by side. He then contended that his defence was not considered, and also that the sentence of 45 years imprisonment was too harsh considering his age of about 70 years. **Determination** 1. As a first appellate Court, I am obligated to revisit and re-evaluate the evidence afresh, assess the same and make my own conclusions bearing in mind that, unlike myself, the trial Court had the advantage of hearing and observing the demeanour of the witnesses **(see Okeno vs Republic (1972) E.A 32).** 2. The issues that arise for determination in this appeal are as follows; 3. **Whether the Prosecution proved the charge of incest to the required standard.** 4. **Whether the sentence imposed was lawful and/or excessive.** 5. The offence of incest is provided for under **Section 20(1**) of the [**Sexual Offences Act**](https://new.kenyalaw.org/akn/ke/act/2006/3)as follows: **“Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years, provided that if it is alleged in the information or charge that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person."** 1. To prove the offence of incest therefore, the following ingredients must be met: **(i)** penetration, **(ii)** proof that the offender is a relative of the victim, and, **(iii)** identification of the perpetrator. Where the victim is below 18 years old, thus a minor, the age of the victim is also relevant in sentencing. 2. In this case, on the issue of “***penetration***”, the minor (**PW1**) testified that on 22/06/2024 at about 6.00 pm, she was alone harvesting vegetables at the farm when the Appellant, her grandfather, came to the farm, carried her and took her to a nearby house where he removed his clothes and her trouser and pant, spat saliva on his two fingers and inserted them into her “***thing used for urinating***”, and then put “***his thing for urinating into”*** her ***“thing used for urinating***”. She testified that the Appellant put the fingers 3 times into her vagina and he kept putting saliva many times, that she tried to scream but the Appellant covered her mouth, she bit him and took a “***mwiko***” (wooden cooking stick) and hit him with it. She also explained that the Appellant had made her lie down and he slept on his side, and that her uncle, **PW3** walked in and found the Appellant in the act. 3. **PW2**, the Clinical Officer testified that the minor was brought to the facility on 24/06/2024, that on examination, he noted that the minor’s minora and majora were inflamed, and hymen partially torn, the penetrating object appeared to be recent, and the vagina was open by 1 centimeter. He testified that he found an inflammation caused by recent partial vagina penetration, and he then produced the Post Rape Care and P3 Forms. He also explained that the minor was examined within 72 hours of the act. He also ruled out fingers’ insertion as the reason for the signs of penetration observed on the minor’s genitalia, and he explained this is because of the redness in the external area yet children cannot withstand the pain of breaking of the hymen. 4. On “***identification***”, it was not disputed that minor is the Appellant’s 11 years old grand-daughter with whom they lived in the same homestead, and she was therefore familiar with him. This fact was also confirmed by the Appellant. The incident is also said to have occurred at around 6.00 pm, thus before darkness. **PW3** the minor’s uncle, in whose house the incident is said to have occurred, also testified that on the material date, he went home and while patrolling the garden at around 6.00 am, he pushed the door open and found the Appellant lying on his side half-naked, while holding the minor, whose clothes were pulled up. 5. This was therefore a case of “***recognition***” rather than identification of a stranger, which evidence is more reliable and believable in “***identification***” (see the Court of Appeal case of **Reuben Tabu** **Anjononi & 2 Others v Republic [1980] eKLR**,). 6. Reading through the minor’s testimony, I find her to have been quite cogent and firm, and her testimony was also not shaken or contradicted in cross-examination. To me, she sounded credible and believable. No convincing reason has been given why the minor would make such a serious allegation against her own grandfather if not well-founded. I therefore find no fault by the trial Magistrate in believing her testimony. 7. Regarding the minor’s use of the term “***tabia mbaya***” and “***dudu***”, the Court of Appeal, in the case of **Muganga Chilejo Saha v Republic [2017] eKLR**, acknowledged that those are acceptable description of defilement. The Court recognized that in Kenya, the society has adopted such terms as a euphemism to mean phrases generally used by children, and even adults, to describe sexual acts. 8. In this case, even if the issue of corroboration were to arise on the ground of the minor being the only evidence of a single witness, which is not even the case, still the proviso to **Section 124** of the [**Evidence Act**](https://new.kenyalaw.org/akn/ke/act/1963/46)would come into play. The Section provides 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 the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him 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 offense, 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.”** 1. In this case, the trial Magistrate heard the minor and believed her. 2. The contention by the Appellant that the complainant would not have been able to walk home if she had been defiled is also not a serious one. It does not automatically follow that every victim of defilement would be unable to walk after the act. His allegations that the injuries could have been caused by another source such as insertion of fingers, though theoretically correct, is also unfounded in that nothing was presented before the trial Court to lay a basis for suspicion that this is what could have actually happened in this case. 3. Regarding the Appellant’s contention that “***penetration***” was not proved simply because no spermatozoa or discharge was found upon examination of the minor, **Section 2(1**) of the [**Sexual Offences Act**](https://new.kenyalaw.org/akn/ke/act/2006/3)defines the term “***penetration***” as: **“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”** 1. In interpreting this definition, 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 minor 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.”** 1. Regarding the ***alibi*** defence alleged by the Appellant, I observe that the same was not raised or even alluded to at any time earlier, not even during cross-examination of the Prosecution witnesses, and was only brought up at the defence stage. The logic behind the requirement to raise an ***alibi*** defence early enough is to give the police an opportunity to investigate it. The timing on when an ***alibi*** defence is raised therefore determines the weight the Court will give to it. Where it is raised late as in this case, the weight of the defence is weakened as there is no opportunity for the police to scrutinize its veracity. (see for instance, the case of **R v Sukha Singh S/o Wazer Singh & Others (1939) 6 EACA 145**). 2. In any case, I note that the Appellant claims that on the material day, he was out taking alcohol at a separate home until about 7.30 pm, and he reached his home at around 8.30 pm, bathed and slept for the night. His witness, **DW2** confirms that indeed, he was with the Appellant at the drinking den during the afternoon but states that they parted ways at around 7.00 pm. On their part, both the minor and **DW3** estimated the time of the incident as about 6.00 pm. I do not find the time of 7.00 pm that **DW3** alleges to have parted with the Appellant to have been too far apart from the estimate of 6.00 pm given by both the minor and **PW3**. They basically fall within the same timeline, being only about 1 hour apart. Again, since the Appellant and the **DW2** both admit to have been drinking alcohol for a good part of the afternoon, it cannot be ruled out that their estimate of the time may not have been too accurate. 3. The Appellant also alluded that family members framed him because of a land dispute within the family. There was however nothing on record to indicate the existence of any such land dispute to the extent that the family would frame him for such a heinous and unforgivable offence. Even assuming that indeed, the minor’s mother and uncle framed the Appellant or coached the minor, how does the Appellant explain the corroborative evidence on record? Were the medics, the police, and also the Prosecution also compromised? Nothing points to any such collusion. I also note that **DW2**, the Appellant’s witness stated that he only he knew about the land dispute because the Appellant told him about it, as such, not from his own means. 4. From the evidence on record, I am satisfied that there was sufficient material before the trial Magistrate to justify the her finding that “***family*** ***relationship with the minor***”, “***penetration***” and “***identification***” had been proved. In the circumstances, I find no reason to interfere with the conviction of the Appellant as all the elements of the offence of incest were proved beyond reasonable doubt. 5. Regarding sentence, the applicable principles in re-considering sentence on appeal were restated by the Court of Appeal in the case of **Bernard Kimani Gacheru v Republic [2002] eKLR**, in the following terms: **“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”.** 1. As already observed above, under the [**Sexual Offences Act**](https://new.kenyalaw.org/akn/ke/act/2006/3), the punishment prescribed for the offence of incest where the victim is less than 18 years old is life imprisonment.. In this case, the minor’s age was established by way of the Certificate of Birth produced in evidence, which indicated that she was born on 3/07/2013. This therefore means that she was 11 years old at the date of 22/06/2024 when the offence is alleged to have been committed. This, the Appellant also confirmed in his testimony. The minor was therefore established to be under the age of 18 years. 2. In view of the above, it is clear that the sentence of 45 years imprisonment imposed by the trial Court was within the law. This observation does not however mean that I cannot determine the issue whether the sentence was manifestly excessive or harsh, which I now hereby do. 3. The Supreme Court, in the case of **Francis Karioko Muruatetu & Another v Republic [2017] eKLR)**, guided that, in sentencing, 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. 4. Similarly, in the case of **Daniel Kipkosgei Letting v Republic** [2021] eKLR, the Court of Appeal held 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. ……..”** 1. I also cite **Majanja J**, in the case of **Michael Kathewa Laichena & another v Republic [2018] eKLR**, in which, quoting the **Muruatetu** case (**supra**), he stated that: **“The Sentencing Policy Guidelines, 2016 (“the Guidelines”) published by the Kenya Judiciary provide a four tier methodology for determination of a custodial sentence. The starting point is establishing the custodial sentence under the applicable statute. Second, consider the mitigating circumstances or circumstances that would lessen the term of the custodial sentence. Third, aggravating circumstances that will go to increase the sentence. Fourth, weigh both aggravating and mitigating circumstances. ………………………………”** 1. In this case, the Appellant’s mitigation was considered by the trial Magistrate. I also consider that the Appellant was the minor’s grand-father who was therefore the same person expected to protect her and provide her with a sense of security. He instead betrayed that trust and committed a heinous act on her, his very own bloodline, and from which she will forever bear the scars of, and is unlikely to fully recover. The worst part is that the Appellant is not even remorseful, and despite the overwhelming evidence, he still continues to claim that he was framed. 2. Taking into account all the above circumstances, and the impact of the offence on the victim, I find no reason to interfere with the sentence imposed **Final Orders** 1. In the circumstances, this Appeal fails, and is dismissed in its entirety. **DELIVERED, DATED AND SIGNED AT ELDORET THIS 5TH DAY OF JUNE 2026** **……………..……..** **WANANDA JOHN R. ANURO** **JUDGE** **Delivered in the presence of:** | | | | --- | --- | | **Both Appellants present virtually from Eldoret Main Prison** | | | **Ms. Mwangi for the State** | | | **Court Assistant: Rodgers Tshombe** | |