https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1194

Muchendu v Republic (Criminal Appeal 91 of 2019) [2026] KECA 1194 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KECA 1194 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Appeal 91 of 2019 PM Gachoka, JM Ngugi & MB Kairaria, JJA June 26, 2026 Between Peter Thuo Muchendu Appellant and Republic Respondent (An appeal from the judgment of the High Court of Kenya at Nakuru [J. M. Mativo, J.] dated 22nd October 2019 in HCCR.A No. 93 of 2017) Judgment 1.Peter Thuo Muchendu, the appellant was arraigned before the Chief Magistrate’s Court at Molo in Criminal case No.2826 of 2015 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 are that on the 6th Day of September, 2015 at [Particulars Withheld] in Molo Town in Molo District within Nakuru County, he intentionally caused his genital organ namely penis to penetrate the genital organ namely vagina of AC a girl aged 7 years. 2.The appellant pleaded not guilty to the charge on 9th September, 2015 and the case proceeded to trial. The prosecution called 4 witnesses who gave sworn evidence, while the appellant elected to give unsworn evidence and called no other witnesses in his defence. 3.After the trial, the learned magistrate (J. Wanyanga R. M) evaluated and considered the evidence tendered by both the prosecution and the defence and concluded that the prosecution had proved the three ingredients of the offence of defilement namely; age of the complainant, penetration and identity of the assailant, beyond reasonable doubt. Consequently, the trial court found the appellant guilty as charged and convicted him under Section 215 of the Criminal Procedure Code in a judgment delivered on 1st November, 2017 and sentenced to life imprisonment on 3rd November 2017. 4.Aggrieved by that decision, the appellant lodged an appeal against both conviction and sentence at the High Court of Kenya at Nakuru (HCCR.A NO.93 of 2017) on four grounds faulting the magistrate for proceeding on a fatally defective charge sheet, inconclusive identification evidence, unproven age of the complainant and without conclusive proof of penetration. 5.The appeal was heard by J.M. Mativo J. (as he then was) on 25th January, 2019 who upon re-evaluating the prosecution and defence evidence tendered at the trial found that; - the prosecution had proved the offence of defilement to the required standard i.e beyond reasonable; the magistrate had correctly analysed the evidence on record and properly convicted the appellant and there was no reason to fault the magistrate’s findings on conviction. 6.The learned judge also considered the sentence of life imprisonment imposed on the appellant and found that it is the mandatory sentence prescribed under Section 8(2) of the Sexual Offences Act for the offence of defilement involving a child aged eleven years or less and crucially that neither he nor the magistrate had any discretion in law to impose a lesser sentence. For those reasons, the learned judge dismissed the appellant’s first appeal in its entirety in a detailed judgement dated 22nd October, 2019 and delivered on 6th November, 2019 thus provoking this second appeal to this Court. 7.The appellant has two sets of grounds of appeal contained in his memorandum of appeal filed on 14th November, 2019 and undated supplementary memorandum of appeal filed with his submissions in support of the appeal. The appellant invites us to find that the first appellate judge erred in law by:a.failing to note that the prosecution case was not proved beyond reasonable doubt as prescribed by law;b.failing in his mandate to evaluate the evidence on record afresh and instead relied on the erroneous finding of the lower court;c.failing to note that the mandatory nature of every sentence was declared unconstitutional by the Supreme Court of Kenya;d.failing to resolve material contradictions and inconsistencies in the prosecution case in favor of the appellant;e.relying on the evidence of a minor without cautioning himself on the dangers of relying on such evidence that was prone to interference;f.disregarding the credible defence given by the appellant; andg.failing to appreciate that penetration which is the core ingredient of the offence termed defilement was not proved beyond reasonable doubt and there was contradicting evidence on whether it was anal or vaginal.Based on those grounds the appellant prayed that the appeal be allowed, his conviction and sentence be set aside and he be set at liberty. 8.The supplementary grounds of appeal are on the sentence of life imprisonment passed by the trial court and upheld by the first appellant court. Essentially the appellant contends that the sentence is excessively harsh and unjust considering the new jurisprudential developments; does not go well with paragraph 4:1 of the 2016 (but erroneously referred to as 2015 by the appellant) sentencing policy guidelines; and does not consider that: he is a first offender, who is remorseful, regrets his actions and is repentant; and he was a young man with potential to do good and work hard to support himself and family if given a chance. 9.We heard the appeal on 17th March 2026. Mr. Thuo the appellant relied on his undated written submissions and pleaded with the court to assist him because he has been rehabilitated and reformed while in prison. Mr. Omutelema, Senior Assistant Director of Public Prosecutions relied on his written submissions dated 10th September, 2024 and urged us to dismiss the appeal against conviction and sentence in its entirety. 10.This being a second appeal, we must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence. In (Karingo vs. Republic [1982] this Court stated:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence. The test on a second appeal is whether there was any evidence on which the trial court could find as it did.Reuben Karari S/O Karanja Versus Republic [1956] 17 EACA146].’’ 11.We note that, though the appellant initially challenged both conviction and sentence in his memorandum of appeal, he abandoned the challenge on his conviction in his supplementary grounds of appeal and in his written submissions and made a passionate plea for reduction of his life sentence in his oral highlight on 17th March, 2026. 12.Briefly the appellant states that he is before us on appeal against sentence only and in mitigation pleads that; he regrets his deeds, is remorseful and asks for forgiveness. He adds that the circumstances of the case did not warrant a sentence of life imprisonment and the sentence imposed does not serve the objective of reform, and rehabilitation enunciated in the sentencing policy. He told us that he is reformed and ready for reintegration into the community and urged the court to assist him by setting aside the sentence of life imprisonment and instead substitute it with a more lenient sentence. 13.While we hear the appellant’s plea for leniency and imposition of a lesser sentence than that of life. Under Section 361(1)(a) CPC severity of sentence is deemed to be a matter of fact and this Court is precluded from considering such a question unless the legality of the sentence is As pointed out earlier in this judgement the matter is one of severity of sentence a question that is regarded as a question of fact thus outside the jurisdiction of this Court as a second appellate Court. Except in those cases where the High Court has enhanced the sentence or where the trial court had no power to pass it when a challenge on sentence may be raised by the appellant and properly entertained by the court, this Court has otherwise no jurisdiction to interfere with sentence on a second appeal. That position was succinctly restated in Sichei vs. Republic [2025] KECA 152[KLR] at par 8:“This being a second appeal, the Court’s duty as provided under Section 361(1) of the Criminal Procedure Code is to consider matters of law . Severity of sentence is categorized under Section 361(1) as a matter of fact and the Court’s jurisdiction to hear an appeal against sentence is only limited to where the High Court enhanced the sentence or where the trial court had no power to pass the sentence. ” 14.This is not the case in the appeal before us. The first appellate court did not enhance sentence but upheld the life imprisonment sentence imposed by the trial court. The trial court had jurisdiction to pass it as it is the mandatory statutory sentence provided for the offence defilement involving a child of 11 years or less under the Sexual Offences Act. In the instant case, there is clear evidence that the child was aged 7 years which is within the age bracket contemplated by Section 8(2) of the Sexual Offences Act. It is thus neither excessive nor unconstitutional and contrary to emerging jurisprudence as contended by the appellant. We note that the decisions relied on by the appellant to buttress his submission that the life sentence is unconstitutional do not in fact reflect the current jurisprudence as laid down by the highest court in the land. Probably unbeknown to the Appellant the Supreme Court has declared that statutory mandatory sentences under the Sexual Offences Act are constitutional. (See Republic vs. Joshua Gichuki Mwangi and Initiative for Strategic Litigation &3 others [2024].KESC34 [KLR]). This Court just like the two courts below is bound by that decision and we cannot interfere with the sentence of life imprisonment imposed by the trial court and confirmed by the first appellate court. 15.In the upshot, we find no merits in the appeal and is hereby dismissed. DATED AND DELIVERED AT NAKURU THIS 26TH DAY OF JUNE, 2026.M. GACHOKA C.Arb, FCIArb..........................................JUDGE OF APPEALJOEL NGUGI..........................................JUDGE OF APPEALMURUNGI B. KAIRARIA..........................................JUDGE OF APPEALI certify that this is atrue copy of the original.Signed.DEPUTY REGISTRAR