https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8261

Masheti v Republic (Criminal Appeal E028 of 2025) [2026] KEHC 8261 (KLR) (27 May 2026) (Judgment) Neutral citation: [2026] KEHC 8261 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Appeal E028 of 2025 RN Nyakundi, J May 27, 2026 Between Bonface Masheti Appellant and Republic Respondent (Being an Appeal from the Judgment of Hon N. N. Moseti (PM) delivered at Hamisi Magistrate’s Court in Sexual Offence Case No E048 of 2023 on 4{{^th}} April 2025) Judgment 1.The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No 3 of 2006. The particulars of the offence were that Bonface Masheti on the 31st day of December 2016 at [Particulars Withheld], Kipchekwen Sub-location, Hamisi Sub-County within Vihiga County unlawfully and intentionally caused his penis to penetrate the vagina of T.M a girl aged 7 years. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. 2.The Appellant was tried and convicted of the offence of defilement and sentenced to a life imprisonment. Being dissatisfied with the said Judgement delivered on 4th April 2025, the Appellant lodged the Appeal herein. The Appellant filed the Petition of Appeal dated 20th day of November 2025 based on 9 grounds as follows: -a.That the trial court erred in law and in fact in not making a finding that the ingredients forming the offence were not proved beyond a reasonable doubt standard.b.That the trial court erred in law and in fact in not weighing the contradictions, discrepancies and inconsistencies that were inconsequential to conviction.c.That the trial court erred in law and in fact not considering the procedural errors that rendered the trial unfair.d.That the trial court erred in law and in fact in admitting evidence that were inadmissible hence unfair trial.e.That the trial court erred in law and in not making a finding that the Constitution rights of the appellant to a fair trial were breached.f.That the trial Court erred in law in not appreciating the appellant’s defence that overwhelmed the prosecution case.g.That the trial court erred in law and in fact in not considering the circumstances surrounding the commission of this offence section 33 of the SOA Act No. 3 of 2006 that entailed dishonesty of the prosecution witnesses and evenly impeach the credibility.h.That the trial court erred in law and in fact in not making a finding that the legislation did not expressly provide that the life sentence under section 8(2) Sexual Offences Act No.3 of 2006is minimum or maximum hence under the court’s discretion to determine it minimum and maximum.i.That the trial Court erred in law and in fact in not making a finding that this case presents exceptional circumstances to compel a court to order an unconditional and absolute discharge under section 35 of the Penal Code or non-custodial or suspend sentence pursuant to paragraph 3.2 – 3.3 Sentencing Policy Guidelines revised 2023. 3.The Appellant sought the following orders from this Court in the Petition of Appeal: -a.Conviction be quashed, sentence set aside and appellant set free.b.Court to furnish the Appellant with the trial records so that he may amend or erect more grounds at the hearing thereof.c.The Court to embrace his petition grounds of appeal herein in its entirety. 4.The Appeal was canvassed by way of written submissions. Appellant’s Written Submissions Summary 5.The Appellant filed his written submissions dated 25th February 2026. On the issue of legal representation, the Appellant submitted that the he was a poor man and a layman in law although he cross-examined and gave his defense. He asserted that he was confused, fearful and wanting in intelligence that he could not bring out a point in his own favour or pop holes in the weaknesses of the prosecution’s case. It was his case that the right to legal representation goes to the root of a fair trial and may likewise cause substantial injustice to an accused person if an accused is denied the right as was held in the cases of Joseph Ndungu Kagiri Vs Republic [2016] eKLR and Leonard Maina Mwangi Vs DPP & 2 Others [2017] eKLR. 6.On the issue of whether the prosecution had proved its case beyond reasonable doubt, the Appellant did not submit on the element of age. The Appellant did not also submit on the element of identification. On the element of penetration, the Appellant submitted that the presence of epithelial cell and torn hymen was not conclusive proof of penetration as was held in the cases of P.K.W Vs Republic [2012] eKLR and Benard Opiyo Alias Jemaa Vs Republic HCCRA No 13 of 2021. He invoked Section 124 of the Evidence Act and submitted that PW1 was not a reliable witness and that the trial court did not record the reasons why it believed her to be a reliable witness or truthful. He further relied on the case of Estate Kalunza Vs Braeur 192 AD 243 at 266-267 and added that the evidence of the Prosecution witnesses was inconsistent. Respondent’s Written Submissions Summary 7.The Respondent filed its submissions dated 2nd February 2026 through the Learned Prosecution Counsel Mr. Leina Davies. The Learned Prosecution Counsel did not submit on the issue of legal representation. 8.On the issue of whether the prosecution had proved its case beyond reasonable doubt, on the element of age the Learned Prosecution Counsel submitted that the Charge Sheet indicated that the Complainant, TMA PW1 was seven (7) years of age at the time of the commission of the offence. He contended that PW1 also testified that she was seven (7) years at the time of the commission of the offence and that a copy of her health card was produced as exhibit and showed that she was born on 18th August 2009. He added that as the Appellant did not rebut the said evidence, this ingredient had been proved beyond reasonable doubt. He made reliance on the case of Musyoki Mwakavi Vs Republic [2014] eKLR. 9.On the element of identification, the Learned Prosecution Counsel submitted that PW1 testified that it was the Appellant who defiled her and that she identified him as a neighbour. He asserted that Rahab Nanjala Muhando PW2 testified that she knew the Appellant who was employed to work in their home. Counsel contended that the Appellant was therefore someone well known to PW1 and could not have been mistaken as to his identity. He pointed out that that was evidence of recognition which was held by courts to be more reliable and weightier than that of identification of a stranger as was held in the case of Anjononi & Others vs Republic (1976-80) 1 KLR 1566, 1568. Counsel was emphatic that there was proper identification as there was prior knowledge of the Appellant and opined that there was proper identification as PW1 had prior knowledge of the Appellant. 10.On the element of penetration, the Respondent cited Section 2 of the Sexual Offences Act and placed reliance on the case of Mohammed Omar Mohammed Vs Republic [2020] eKLR where it was held that the key evidence relied upon by the courts in rape and defilement cases in order to prove penetration was the complainant’s own testimony which was usually corroborated by the medical report presented by the medical officer. The Learned Prosecution Counsel submitted that the evidence of PW1 corroborated that of the Clinical Officer, Kosgei Erick PW3 and that penetration was therefore proved. Analysis and Determination 11.It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. 12.This was aptly stated in the case of Selle & Another Vs Associated Motor Boat Co Ltd &Others [1968] EA 123 where the court therein held that: -“The appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify and thus make due allowance in that respect. 13.The Supreme Court of India also explained the duty of a first appellate court in K. Anbazhagan Vs State of Karnataka and Others Criminal Appeal No. 637 of 2015 as follows: -“The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely...The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.” 14.Having looked at the Appellant’s Petition of Appeal and the rival written submissions, there are three (3) issues for determination as follows: -a.Whether the Appellant was accorded a fair trial under Article 50(2)(g) and (h) of the Constitution of Kenya, 2010b.Whether the Prosecution proved its case beyond reasonable doubtc.Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted. Whether the Appellant was accorded a fair trial under Article 50(2)(g) and (h) of the Constitution of Kenya, 2010 15.Ground of Appeal No. 5 is dealt with under this head. Legal representation is to be provided to an accused person who is likely to suffer substantial injustice if an advocate is not assigned to him by the State irrespective of the offence he is charged with. Article 50(1) of the Constitution of Kenya, 2010 states that: - “Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” 16.Article 50(2)(h) of the Constitution of Kenya further provides as follows: -“Every accused person has the right to a fair trial which includes the right to have an advocate assigned to the accused person by the State and at State expense if substantial injustice would otherwise result, and to be informed of this right promptly.” 17.Notably, Article 50(2)(g) of the Constitution of Kenya provides as follows: - “Every accused person has the right to a fair trial, which includes the right to choose, and be represented by, an advocate, and to be informed of this right promptly.” 18.Article 50(2)(j) of Constitution of Kenya states that: -“Every accused person has the right to a fair trial which includes the right to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.” 19.The right under Article 50(2)(g) of the Constitution must be distinguished from the right under Article 50(2)(h) of the Constitution given that in many instances the rights under Article 50(2)(g) and (h) of the Constitution are dealt with contemporaneously. The right under Article 50(2)(h) of the Constitution on one hand places a duty on the State to assign an Advocate to an accused person at its own expense if substantial injustice will otherwise result. The right under Article 50(2)(g) of the Constitution on the other hand deals with informing an accused person of his/her right to be represented by an Advocate of one’s choice further to giving necessary information to the accused person and calling him/her to make a choice on his/her legal representation. Put differently, the right under Article 50(2)(h) of the Constitution deals with instances where the State must assign an Advocate to an accused person. Suffice to say that the right to a fair trial under Article 50 of the Constitution is among those rights that cannot be limited in any way whatsoever courtesy of Article 25 of the Constitution. 20.Courts have dealt with the need to avail such information to an accused person to enable him/her make a choice on legal representation. In Pett Vs Greyhound Racing Association (1968) 2 All ER 545 Lord Denning presented himself thus: -“It is not every man who has the ability to represent himself on his own. He cannot bring out the point in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A Magistrate says to a man; ‘you can ask any questions you like;’ whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him and who better than a lawyer who has trained for the task.” 21.In South Africa in Fraser Vs ABSA Bank Limited (66/05) (2006) ZACC 24; 2007 (3) SA 484 (CC); 2007 (3) BCLR 219 (CC) the Constitutional Court had the following to say: -“Without the recognition of the right to legal representation in section 26(6), the scheme of restraint embodied in POCA might well have been unconstitutional. However, the right embodied in section 35(3)(f) of the Constitution does not mean that an accused is entitled to the legal services of any counsel he or she chooses, regardless of his or her financial situation….” 22.In the case of Joseph Kiema Philip Vs Republic (2019) eKLR, the Court stated as follows: -“……it is paramount that the record of the trial court should demonstrate that the accused was informed of his right to legal representation and whether or not in the case that the he cannot afford an advocate; one may be appointed at the expense of the state. It [the court record] must show that the court did take the profile of the accused person before the trial commenced……” 23.A perusal of the proceedings of the lower court showed that during plea taking on 9th August 2023, the Trial Court informed the Appellant that he had a right to seek legal representation or apply to the legal aid board. Notably, the Appellant proceeded with the case on several occasions by cross-examining the Prosecution witnesses and without mentioning that he was in need of legal representation. The limitation of the right to be assigned legal representation by the State was addressed by the Court of Appeal in the case of Karisa Chengo, Jefferson Kalama Kengha & Kitsao Charo Ngati Vs Republic [2015] eKLR when it stated as follows: -“It is obvious that the right to legal representation is essential to the realization of a fair trial more so in capital offences. The Constitution is crystal clear that an accused person is entitled to legal representation at the State’s expense where substantial injustice would otherwise be occasioned in the absence of such legal representation. This Court in the David Njoroge Macharia case (supra) seems to have expanded the constitutional requirement that legal representation be provided at state expense in cases where substantial injustice might otherwise result’ and to include all situations where an accused person is charged with an offence whose penalty is death. This may be misunderstood to mean that all persons, regardless of their economic circumstances, would be entitled, as of right, to legal representation at state expense if they are charged with an offence whose penalty is death. However, substantial injustice only arises in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state obligation to provide legal representation arise. 24.In this particular case, the Appellant proceeded with the trial without ever having asked the Trial Court to give him time to instruct counsel to represent him during trial. Provision of legal representation at the State expense was a progressive right which was currently accorded to persons who had been charged with capital offences only. This court thus comes to the firm conclusion that the Appellant’s constitutional and fundamental right to fair trial had not been breached under Article 50(2)(g) of the Constitution of Kenya. 25.In the premises, Ground of Appeal No 5 is not merited and the same be and is hereby dismissed. Whether or not the Prosecution proved its case beyond reasonable doubt? 26.The issue in this case is whether the prosecution proved its case to the required standards. Most of quoted English decision of by Viscount Sankey L.C in the case of H.L. (E) Woolmington Vs DPP [1935] A.C 462 pp 481, comes in handy in describing the legal burden of proof in criminal matters, that: -“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’ 27.Grounds of Appeal No (1), (2), (3), (4), (6) and (7) are dealt with under this head. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases is proof beyond reasonable doubt, this court considers the ingredients of the offence of defilement. The act of defilement is defined by Section 8 (1) of the Sexual Offences Act that provide thus: A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. The Ingredients of defilement were stated in the case of Charles Wamukoya Karani Vs Republic, Criminal Appeal No. 72 of 2013 where court delivered itself thus: -“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 28.To prove the case to the required standard, the prosecution was required to prove existence of the following ingredients: -a.Age of the victimb.Proof of penetration.c.Positive identification of the perpetrator of the act. Age 29.The prosecution is required by Section 8 of the Sexual Offences Act to prove the age of the child either by producing a birth certificate, medical age assessment, through direct testimony of the parent, guardian or the victim or through expert testimony. In the case of Jon Cardon Wagner Vs Republic (Criminal Appeal No. 404 of 2009), Warsame SCJ (as he then was) emphasized that: -“….in defilement cases, the age of the complainant is proved either by medical evidence or through other evidence since the Sexual Offences Act has different categories of ages and sentences for different ages” 30.Equally, in the case of Musyoki Mwakavi Vs Republic Criminal Appeal No. 172 of 2012, Mutende J elaborated that: -“…. Apart from medical evidence, age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense…” 31.In the case of Kaingu Elias Kasono Vs Republic, Criminal Appeal No. 54 of 2010 the Court of Appeal held as follows: -“Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved in the same way as penetration in cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed upon conviction will be dependent on the age of the victim.” 32.Further, in the case of Hadson Ali Mwachongo Vs Republic (2016) eKLR, the Court of Appeal stated that: -“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of victim. In Alfayo Gombe Okello Vs Republic Cr. App. No. 203 of 2009 (Kisumu), this Court stated as follows;“In its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1).” 33.However, in the case of Richard Wahome Chege Vs Republic Criminal Appeal No. 61 of 2014, the same Court of Appeal, held that: -“On the contention that the age of the complainant was not established, it is our considered view that age is not proved primarily by production of a birth certificate. PW2 the mother of the complainant testified that the complainant was 10 years old.What better evidence can one get than that of the mother who gave birth? It is our considered view that the age of the complainant was not only proved by PW2 but supportive evidence was given by PW3 [the doctor] who examined the complainant, and the complainant herself.” 34.In the present case, a Child’s Immunization Card (Health Card) was tendered in evidence which showed that PW1 was born on 18th August 2009. A perusal of the Charge Sheet indicated that the incident took place on 31st December 2016 which meant that PW1 was seven (7) years at the time of the commission of the offence. As the Appellant did not challenge the production of the aforesaid health card and/or rebut this evidence by adducing evidence to the contrary, this court is satisfied that PW1’s age was proven using medical evidence and that she was a child at all material times. Identification 35.A perusal of the proceedings show that PW1 testified that on the material day of 31st December 2016 at noon, she was leaving the river and passed in front of the house of the Appellant called Bonne (pointed). She said that Bonne was her parents’ neighbor and they were close friends. She stated that the Appellant called him and asked to send her. She left the five (5) litre jerrican on the road and went to where he was. 36.It was her further testimony that the Appellant pulled her hand, put her on the sofa set, removed her panty, lay on her chest, spread her legs and defiled her. She added that he took a clothe and place in her mouth so that he could not make noise. He threatened to kill her in the event she disclosed the happenings of that day to anyone. 37.It was evident that PW1 was the only identifying witness. Having said so, under Section 124 of the Evidence Act Cap 80 (Laws of Kenya), a trial court could convict a person on the basis of uncorroborated evidence of the victim if it was satisfied that the victim was telling the truth. 38.Notably, the proviso of Section 124 of the Evidence Act states that: -“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 (emphasis).” 39.Even so, a trial court was required to exercise great caution before relying on the evidence of a single witness to convict an accused person as it would be one person’s word against the other. Other corroborating evidence could assist the trial or appellate court to come with a determination as to who between the opposing witnesses was being truthful. Other corroborating evidence could be proof of penetration, which was dealt with later in the Judgment herein. The courts have held that evidence of recognition is far much more reliable than mere identification alone. This was well enunciated in the case of Anjoroni Vs Republic 1980 KLR 59 to deal with the issue of identification of a stranger. The Court of Appeal observed that;“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 the other.” 40.PW1 positively identified the Appellant who was a neighbor and when she told PW2 who had defiled her. The incident occurred during the day when lighting conditions were favourable for positive identification. There could not therefore have been any possibility of a mistaken identity. This court thus concludes that the Prosecution proved the ingredient of identification which was by recognition and that the Appellant herein was positively identified as the perpetrator of the offence he was charged with. Penetration 41.PW3 confirmed that PW 1’s labia majora was reddish, the hymen was broken and she had whitish discharge from her vagina. He confirmed that she had been penetrated. He produced the P3 Form as exhibits during trial. In his defence, the Appellant testified that he was at his sister’s place on the material day attending a burial. He denied defiling PW1 and explained how he was arrested. 42.In ascertaining whether the Appellant’s defence of alibi had value, this court had due regard to the definition of “alibi” in the Black’s Law Dictionary, 10th Edition. It is defined as: -“A defence based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time”. 43.It is also trite law that once a respondent raised an alibi defence, the onus shifts to the prosecution to displace the same as was held by the Court of Appeal in the case of Victor Mwendwa Mulinge Vs Republic [2014] eKLR. In this case, the defence of alibi was raised at the defence hearing and not at the beginning of the trial. The Prosecution did not rebut the same despite having the option of doing so as provided in Section 309 of the Criminal Procedure Code Cap 75 Laws of Kenya which provides that: -“If the accused person adduces evidence in his defence introducing new matter which the advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply to rebut it.” 44.Be that as it may, weighed against the evidence that was adduced by the Prosecution witnesses, this court did not find the Appellant’s alibi evidence to have been watertight enough to have weakened the inference of guilt on his part. This is because the Prosecution had demonstrated the elements of the offence of defilement. This court finds that the Prosecution had proven its case to the required standard, which in criminal cases, was proof beyond reasonable doubt that the Appellant defiled PW1 on the material date as there was proof of defilement as PW3 testified. 45.In the premises, Grounds of Appeal No 1, 2, 3, 4, 6 and 7 are therefore not merited and the same be and are hereby dismissed. Whether the sentence that was meted was harsh and excessive 46.Grounds of Appeal No 7 and 8 of the Petition of Appeal are dealt under this head. The Appellant invoked Articles 25(c), 27(1), 28 and 50(2)(p) of the Constitution of Kenya, 2010 and Sections 216, 323, 329 and 333(2) of the Criminal Procedure Code and placed reliance on the case of A.O.O and 6 Others Vs the Attorney General & Others [2017] eKLR where it was held that an unconstitutional statute was not law. He argued that the sentence meted on him was unconstitutional due to its mandatory nature. He urged the court to consider the time he spent in remand during trial. 47.He further submitted that he was seventy-five (75) years old and had become a burden to his fellow inmates and that his continued incarceration was tantamount to a slow death. In this regard, he relied on the case of Makumbi Subui Wanyeso vs Republic Criminal Appeal No 110 of 2022 where it was held that the Attorney General should take legislative measures that would facilitate periodic review of sentences for convicts who were either over 70 years of age or who have served a sentence of 20 years’ imprisonment with a view to determine whether their continued incarceration was still justified or legally tenable. 48.The Learned Prosecution Counsel on his part made reference to section 8(2) of the Sexual Offences Act and placed reliance on the case of Supreme Court Petition No E018 of 2023 Republic Vs Joshua Gichuki Mwangi where it was held that although sentencing was an exercise of judicial discretion, it was Parliament and not judiciary that set the parameters of sentencing for each crime. He added that the Supreme Court also differentiated between mandatory sentences and minimum sentences and stated that mandatory sentences left no discretion to the judicial officer whereas minimum sentences set the floor rather than the ceiling of such sentences. 49.He contended that the minimum sentence provided under Section 8(2) of the Sexual Offences Act was lawful. He invoked Section 329 of the Criminal Procedure Code and pointed out that the Trial Court took into account the evidence, the nature of the offence and the circumstances of the case in arriving at the appropriate sentence. He was emphatic that the sentence meted on the Appellant was both lawful and befitting of the offence committed. 50.It bears repeating that, the High Court has the mandate under Article 165 (3) of the Constitution to hear and determine matters on enforcement of rights and fundamental freedoms enshrined in the constitution ,A further leapfrog development; under article 50(2)(p) of the Constitution: -50(2) Every accused person has the right to a fair trial, which includes the right—(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing. 51.Sentencing is a discretion of the court. But the court should look at the facts and the circumstances of the case in it’s entirely so as to arrive at appropriate sentence. The Court of Appeal in Thomas Mwambu Wenyi Vs Republic [2017] eKLR cited the decision of the Supreme Court of India in Alister Anthony Pereira Vs State of Mahareshtra at paragraph 70-71 where the court held the following on sentencing: -“Sentencing is an important task in the matter 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 straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As 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.” 52.Also in the case of Francis Karioko Muruatetu & Another v Republic (Supra) where the Supreme Court stated the guidelines and mitigating factors in a re-hearing on sentence were discussed. The judiciary has also developed Judiciary Sentencing Policy Guidelines lists the objectives of sentencing at page 15 paragraph 4.1 which should be considered. 53.In R Vs Bieber [2009] 1 WLR 223 the Court of Appeal of the United Kingdom had held as follows: -“The legitimate objects of imprisonment are punishment, deterrence, rehabilitation and protection of the public. Where a mandatory life sentence is imposed in respect of a crime, the possibility exists that all the objects of imprisonment may be achieved during the lifetime of the prisoner. He may have served a sufficient term to meet the requirements of punishment and deterrence and rehabilitation may have transformed him into a person who no longer poses any threat to a public. If, despite this, he will remain imprisoned for the rest of his life it is at least arguable that this is inhuman treatment…”. 54.In this instant case, the Appellant was convicted and sentenced under Section 8(2) of the Sexual Offences Act Cap 63 A Laws of Kenya. The said Section 8(2) of the Sexual Offences Act provides that: -“A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” 55.This court cannot therefore fault the Trial Court for having sentenced the Appellant to life imprisonment as that was lawful. Notably, on 12th July 2024, the Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi Vs Republic [2022] eKLR which had reiterated the reasoning in the case of Dismas Wafula Kilwake vs Republic [2018] eKLR to the effect that Section 8 of the Sexual Offences Act had to be interpreted so as not to take away the discretion of the court in sentencing offences and held that it was impermissible for the legislature to take away the discretion of courts and to compel them to mete out sentences that were disproportionate to what would otherwise be an appropriate sentence. In its said decision, the Supreme Court held that the Court of Appeal had no jurisdiction to exercise discretion on sentences that had a mandatory minimum sentence. 56.As this court is bound by the decisions of courts superior to it using the doctrine of stare decisis, its hands are tied regarding exercising its discretion to reduce the Appellant’s sentence. It had no option but to leave the said sentence that was meted against the Appellant herein undisturbed. 57.Having said so, I have considered The Sentencing Policy Guidelines, 2023 and its application which is intended to promote transparency, consistency and fairness in sentencing. The relevant considerations in the proceeding inter alia, are the penalty law, mitigating or aggravating factors, and the objects of punishments. Going further, this court is mandated to consider the period the Appellant spent in remand while his trial was ongoing as provided in Section 333(2) of the Criminal Procedure Code. The said Section 333(2) of the Criminal Procedure Code stipulates that: -“Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody (emphasis court)”. 58.This duty is also contained in the Judiciary Sentencing Policy Guidelines where it is provided that: -“The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.” 59.The duty to take into account the period an accused person had remained in custody before sentencing pursuant to Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & Another Vs Republic [2018] eKLR. 60.In view of the foregoing, the Appellant’s Petition of Appeal dated 20th November 2025 is not merited and the same be and is hereby dismissed. The Appellant’s conviction and sentence be and are hereby upheld as they were both safe. Orders accordingly. DATED & DELIVERED AT ELDORET THIS 27TH DAY OF MAY 2026.………………………………..R. NYAKUNDIJUDGE