https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11517

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **CRIMINAL APPEAL NO. E100 OF 2025** **WYCLIFFE MARWA ………………………………...…………………….. APPELLANT** **VERSUS** **REPUBLIC …………………………………………………………………RESPONDENT** **(Being an appeal against sentence by Hon. Obiero SPM delivered on 9th July 2024 in Kehancha S. O. C No. E030 of 2024)** **JUDGMENT** The Appellant was charged with the offence of sexual Assault contrary to Section 5(1) (a) (i) an (2) of the Sexual Offences Act 2006. The particulars are that the Appellant Wyciffe Marwa on the 22n June 2024 Isebania Township in Kuria West Sub-County within Migori County unlawfully use his hands to touch the breasts and buttocks of H. B. In the alternative the Appellant was charged with the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars to the alternative charge are that the Appellant Wycliffe Marwa on the 22n June 2024 Isebania Township in Kuria West Sub-County within Migori County willfully and unlawfully committed an indecent by touching the breasts and buttocks of H. B. a child aged 14 years. When the Appellant was arraigned in court and charge read over to him in Kiswahili language which he chose to use he pleaded guilty to the charge. This was after he had been informed of the right to legal representation under Article 50(2)(g) an (h) of the Constitution and he said he was ready. Facts of the charge were deferred to 26th June 2024 when the charge were read over to him again and he replied that the charge was true. Upon facts being read to the Appellant he said the facts were true and he was convicted on his own plea of guilty. The Appellant was given a chance to mitigate and he asked the court to be lenient to him. After Pre- Sentence report was availed the trial court passed sentence of 10 years which is the mandatory minimum under the law. Being aggrieved by the sentence the Appellant lodged the appeal herein vide Petition of Appeal filed on 23rd September 2025 on the following grounds:- 1. THAT he pleaded guilty after being cheated by the police that he could be forgiven. 2. THAT since it was his first appearance in court he got confused and did not know what was required of him at the plea stage. 3. THAT the trial court erred in both law and facts by not observing that he had a short brain, sometimes he feels confused. That even Article 50(2)(g) & (h) of the Constitution was not complied with. REASONS WHEREFORE * + - 1. The Appellant prayed for re-trial 2. Leave of the court to amend/ supplement more grounds after receiving the lower court proceedings. The appeal against sentence was canvassed by way of written submissions. The Appellant in his undated submissions said that the police cheated him that the court would acquit him but it all turned against him and he was sentenced to 10 years imprisonment. The Appellant also said that the charge sheet was defective and the sentence of 10 years was unlawful. He further said that being it was his first appearance in court, he got confused and he did not know what was required of him at plea stage. He further submitted that the charge sheet was drafted to read Section 5(1)(a)(i) and (2) of the Sexual Offences Act 2007(2006) and the same was ambiguous. And as such Section 134 of the Criminal Procedure Code was not complied with. He said the error was fatal and could not be cured under Section 382 of the CPC. The Appellant cited the holding of the Court of Appeal in Bernard Ombura Vs Republic (2018) eKLR where it was held:- **“the test whether a charge sheet is fatally defective is substantive rather than formalistic of relevance is whether a defect on the charge sheet prejudiced the Appellant to the extent that he was not aware of or at least he was confused with respect to the nature of charges preferred against him and as a result, he was not able to put an appropriate defence”** The Appellant further submitted that the facts by the Complainant did not support the charge of sexual assault. Rather they supported the ingredients of the offence of sexual assault and it was gross violation of his constitutional right to fair hearing. The Appellant also submitted that the trial court did not inform him of the consequences of pleading guilty to a serious charge like this one and his rights under Article 50(2)(b) & (c) of the Constitution. The Appellant urged the court to quash the conviction and set aside sentence. The Respondent opposed the appeal through their written submissions. **ANALYSIS AND DETERMINATION** This being a first appeal, the duty of this Court is to re-evaluate and re-analyse the evidence tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was well stated in Okeno v Republic. Similarly, the duty of the court was stated in **Mark Oiruri Mose vs. R (2013) eKLR thus**; **“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”** Having considered the record of appeal, the grounds of appeal and the submissions filed by the respective parties the only issue for determination is whether the sentence was excessive and harsh in the circumstances and whether the fact that Appellant is a first offender can make the court review the same. The Appellant herein was charged with the offence of defilement contrary to Section 8(1) of the Sexual Offences Act which provides, **"A person who commits an act which causes penetration with a child is guilty of the offence termed defilement".** Section 8(3) of the Sexual Offences Act further provides that: **"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.".** The sentence passed by the Trial Court cannot be termed as harsh or excessive as it is as prescribed by the law. Before passing the sentence herein the Trial Magistrate had this to say: ***I have considered the nature and circumstance of the offence. I have also considered mitigation by the accused person and fact that he is 1st offender. I note that the complainant was only 12 years old. The accused person prayed on her and stole her innocence considering all the above and noting the time accused parson has spent in remand, I sentence him to serve 20 years imprisonment. Right of appeal 14 days.*** The Appellant’s mitigation was considered before the sentence was passed. The Appellant took advantage of the minor and the trust bestowed upon him by PW3 to take the Complainant to the Police Station and went to defile her in his house while threatening to kill her if she raised alarm. His beastly behaviour cannot be condoned in a civilized society. This court therefore finds that the appeal against sentence is without merit and the same is dismissed. The Appellant is duly informed about his right to appeal within 14 days. **DATED, SIGNED AND DELIVERED AT MIGORI THIS 30TH DAY OF JUNE, 2026.** **HON. ANNE ADWERA- ONG’INJO** **JUDGE** **In the Presence of:** Victor – Court Assistant