https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6510

POO v Republic (Criminal Appeal E025 of 2025) [2026] KEHC 6510 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 6510 (KLR) Republic of Kenya In the High Court at Siaya Criminal Appeal E025 of 2025 DK Kemei, J May 15, 2026 Between POO Appellant and Republic Respondent (Being an appeal against the conviction of Hon. C. Maiyo (RM) dated 3rd April, 2025 and sentence of Hon E. Malesi (PM) dated 14th May 2025 in Bondo CM CR S.O E005 of 2025 dated 14/5/2025) Judgment 1.The Appellant herein POO had been charged vide Bondo Chief Magistrate’s court Sexual Offence Case No. E005 of 2025 with an offence of incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that on diverse dates between August 2024 to January 2025 in [Particulars Withheld] village of Central Sakwa Location in Bondo Sub County within Siaya County, being a male person caused his penis to penetrate the vagina of SA a female person who was to his knowledge his daughter. 2.The Appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that on diverse dates between August 2024 to January 2025 in [Particulars Withheld] Village of Central Sakwa Location in Bondo Sub County, within Siaya County, intentionally and unlawfully touched the vagina of SA a child aged 17 years with his penis. 3.The Appellant also faced a second count of killing an unborn child contrary to section 228 of the Penal Code. The particulars were that on 17th day of January 2025 at [Particulars Withheld] village in Bondo Sub County gave abortion tablets to SA preventing from being born alive, a child who was to be delivered by SA. 4.The Appellant denied the charges and that the Respondent called eight (8) witnesses to aid in the advancement of their case. The trial court later found the Appellant guilty and convicted him to serve life imprisonment on both counts 1 and 2 and which were orderd to run concurrently. 5.The Appellant was aggrieved by the conviction and sentence and thus filed his Petition of Appeal dated 26/5/2025 where he raised the following grounds of appeal:a.That the learned trial magistrate erred in both law and fact when she found and convicted the Appellant herein to a life imprisonment and failed to note that the prosecution’s case was not proved as was required by law.b.That the learned trial magistrate erred in matters of law when he convicted the Appellant to a multiple life sentence and yet the prosecution did not prove their case.c.That the learned magistrate erred in both law and fact when he convicted the Appellant herein and failed to note his constitutional rights vested in article 50 (2) (b) (h) (4) and (7) of the constitution of Kenya 2010.d.That the learned trial magistrate erred in law and in fact when he imposed a statutory maximum sentence spelt under section 8(1) (4), 20(1) of the S.O.A No. 3 of 2006 and 228 of the Penal Code but failed to note that since the supreme court’s decision in Francis Karioko Muruatetu & Another Vs. Rep.(2017) HC PET. No 15 & 16 of 2017 the courts are no longer bound by statutory maximum sentences.The Appellant therefore prayed that the appeal be allowed and that the conviction be quashed and the sentence set aside.6. This being the first appellate court, its duty is to re-evaluate the evidence tendered before the trial court and subject it to an independent analysis and to arrive at its own independent conclusion as to whether or not to uphold the judgement of the trial court. This court must also take into account the fact that it neither saw nor heard the witnesses during their testimonies and has to make due allowance for the same. See Okeno Vs Republic [1972] EA 32. 7.The record of the trial Court was as follows; 8.SA (PW1) was taken through a voire dire examination and that it was established that she did not understand the nature of telling the truth and was thus allowed to tender unsworn evidence. She testified that she lives with her grandmother and mother who is called HA and that they left Nyamira as “P alinishika” and removed her panty and stated “akanifanyia tabia mbaya”. She told the court that the Appellant took his thing and inserted into her thing and that the Appellant did the act while on her mother’s bed. That the Appellant did the act many times and that she got pregnant and lost the pregnancy as the Appellant herein took her to hospital to abort the child and gave her tablets which she took and that the unborn child got out of her private part. The witness further told court that the Appellant had sex with her several times and that POO is the Appellant and is her father and that they had lived together for two (2) years. On cross examination the witness testified that at the hospital that the accused took her, her mother was present as well. 9.HAO (PW2) testified that she lived in Nyamira and then left the home as her husband POO had slept with her child and by sleeping she meant that the Appellant had sex with her daughter who got pregnant and that upon her questioning the Appellant and SA, they both agreed that they have had a sexual relationship. The witness told court that the act was bad as POO was the father of the victim (PW1) and that POO looked for money and took the minor to Bondo Township hospital on a date she ccould not remember and that she and the Appellant were later arrested. The witness identified the Appellant as POO while pointing at him and that SA the minor was Nineteen years old. On cross examination, she testified that she was chased away from the home through an order from the Appellant. 10.Victor Oduor Olango (PW3) who is a director of an organization called Samaritan Embassy testified that on the 25th December 2024 he saw SA who was then expectant (alikuwa na mimba) and that the outcry was that POO had impregnated SA who was his daughter. The witness testified that he posted the same on a WhatsApp group on human right defenders and made a report at the children services, police, area chief and office of the assistant chief. He further told the court that he recorded a witness statement on the 29th December 2024 at Bondo police station. He told the court that SA is the daughter of PO the Appellant whom he knows as his step father. 11.. No. 2xxx17 PC Achoka Vincent (PW4) attached to Bondo police station testified that he is the investigating officer in the matter and that the Appellant was brought by members of the public together with the children officer accompanied by the victim and the victim’s mother. That he accompanied the victim to Bondo Sub county Hospital for treatment and that the P3 form was filled and that he recorded witness statements and had the Appellant charged accordingly. He testified that since the age of the victim could not be ascertained, an age assessment and mental assessment was conducted at Siaya County Referral Hospital. He produced the age assessment as PEXB-1. That the Appellant was brought by members of the public over defilement as it was alleged that the Appellant had defiled his daughter and got her pregnant and convinced the victim to carry out an abortion at Bondo Township. He further told court that a confession was obtained from the Appellant and was supervised by Chief Inspector Kahindi Charo. 12.Ayub Ogolla Obenji (PW5) the assistant chief Nyawita sub location testified that on the 16th January 2025, he received information that there was a minor who had been defiled and impregnated by her father. That he took a follow up and summoned Ouma Oteke and the spouse together with the minor and referred the matter to the children’s department. 13.John Okiki Bunde (PW6) was a clinical officer from Bondo Sub-County hospital who testified on behalf of Stephen Okiwiri who was away on official duty. He stated that there is a P3 form in favour of SA who had been defiled by a person well known to her and that at the time of examination, the patient was accompanied by a police officer. That the underpants were soaked in blood, the patient was anxious and well- built and complained of abdominal pains and that the probable weapon of injury was vaginal penetration with a penis. He testified that the labia majora and minora had blood stains, hymen was old/freshly broken as the same could not be established as there was blood all over the region. That there was presence of discharge of blood from the genital area due to post abortion and had a foul smell and that this was a case of defilement after confirming the evidence of abortion and that PTC tested positive. The witness produced the P3 form as PEXB-2, Treatment notes as PEXB-3, Laboratory request form and results produced as PEXB-4. That there was evidence of penetration as there were injuries on the hymen. 14.Daniel Otolo Otolo (PW7) testified that he is a nurse, midwife professional from Siaya County Referral Hospital and has a clinic called Township Medical Centre in Bondo town. He testified that on the 17th January 2025 at 6pm Mr. POO came to the clinic with a girl called SA who was bleeding profusely with severe abdominal pains and that he admitted the patient to the emergency room as the cervix was open and product of conception was coming out and that manual vacuum aspiration was done and that the patient admitted to the ward and discharged while stable on the 18th January 2025. That the chief complaints were general bleeding, severe abdominal pains and that the patient was gravid at 20 weeks. The witness produced the clerk sheet as PEXB-5 and discharge summary as PEXB-6 and that he recorded a witness statement on the 31st January 2025 upon being visited by the police. 15.No. 23xxx29 Chief Inspector Kahindi Charo (PW8) was the OCS Bondo police station and who testified that he is the officer who recorded the confession of POO on the 5th February 2025 having read the confession rules to the Appellant and documented in the proforma and read the caution to the Appellant who was willing to proceed. The witness told court that he recorded the confession in Kiswahili a language that the Appellant understood well. That the Appellant confessed that he was married to HA many yeard back and did not remember the exact date or year and were blessed with Five (5) children and that one of the children is SA the subject before court. He stated that the Appellant confessed having had a sexual relationship with the child for close to five months and got to realize that the subject was pregnant when as per the exact words “The stomach of the child was swelling”. That the Appellant mentioned that the mother of the child was not aware of the developments and that the Appellant and she got ashamed of the outcome. He indicated that the Appellant confessed that he went to a clinic situated in Guba and bought some medicines and administered the drugs to the child (SA) without mentioning to her what they were for and that the following day the child started bleeding and that the Appellant and his wife took the child to a clinic, shared the truth with the wife who was angry at first but came to terms with the outcome. That the Appellant stated that the child was assisted in the clinic and the foetus removed and put in a box and which he took it home and dug a grave and buried it. The witness pointed at the Appellant as the person who confessed before him and produced a confession proforma as PEXB-7. 16.Upon the close of the prosecution’s case, the trial court ruled that a prima facie case had been established against the Appellant who was subsequently placed on his defence. The Appellant indicated that he was aware of the consequences of keeping quiet and opted to remain silent in defence and closed his case and wait for the decision of the court. 17.The trial court considered the evidence and arrived at the impugned judgement. 18.The appeal was canvassed by way of written submissions. However, none of the parties complied. 19.I have considered the evidence tendered before the trial court. I find the issue for determination is whether the Respondent proved its case against the Appellant beyond any reasonable doubt. 20.In criminal cases, the burden of proof lies upon the prosecution to discharge and that the standard is one of beyond any reasonable doubt See Woolmington Vs Dpp [1935] AC 462. 21.The first count that the Appellant faced was incest contrary to section 20 (1) of the Sexual Offences Act No. 3 of 2006. The same provides as follows:“(1)1) 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 and proved 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.” 22.From the foregoing, the ingredients for the offence of incest are:(i)Proof that the offender is a relative of the victim.(ii)Proof of penetration or indecent act.(iii)Identification of the perpetrator.(iv)Proof of the age of the victim. 23.As regards the first ingredient, the prosecution were to prove that there exists degree of consanguinity between the Appellant and the victim. The evidence of the complainant (PW1) was that PO, the Appellant herein, was her father with whom she had lived with him for two (2) years. She further stated that she used to live in Nyamira with (points at the Appellant) together with her mother and that they left Nyamira village because “alinishika akanifanyia tabia mbaya”. The mother of the victim who testified as PW2 ttestified that it was bad as POO was the father to SA and who made SA pregnant. It is also noted that the Appellant later made a confession which was duly recorded by PW8 which read in part “Kwamba nilioa HA kipindi ambacho hawezi kumbuka na kwamba ntulijaliwa na Watoto watano kati ya hao Watoto watano mmoja wao anaitwa SA ambaye nimekuwa na uhusiano wa kimapenzi”Therefore, the relationship between the Appellant and the victim herein fell under Section 20 (1) of the Sexual Offences Act No. 3 of 2006 being the father and daughter respectively. Indeed, the confession aforesaid was not challenged by the Appellant during its production so as to call for a trial within a trial if need be. It is therefore clear that the same had been voluntarily been made by the Appellant and thus the issue of his relationship as the biological father of the complainant was not in dispute. 24.. As regards the aspect of penetration or indecent act, the evidence of PW1 was that the Appellant had carnal knowledge of her, implying that there was penetration. Section 2 of the Sexual Offences Act defines penetration as;“the partial or complete insertion of the genital organs of a person into the genital organs of another person”.PW1 testified that “POO alinishika” and “akanifanyia tabia mbaya” and that he took his thing and inserted into her thing. The victim further told the court that the Appellant had sex with her several times and was on her mother’s bed. That the Appellant did the act many times and got her pregnant and subsequently lost the pregnancy as the Appellant took her to hospital to abort the unborn child where she was given tablets which she took and the unborn child got out of her private part. PW2 told the court that upon inquiring from the minor, she confessed to her that PO had sexually assaulted her and got her pregnant. John Okidi Bunde (PW6) a clinical officer attached at Bondo Sub county hospital testified on behalf of Stephen Okiwiri a colleague who was out on official duties and that the patient complained of abdominal pains, labia majora and minora had blood stains, hymen broken which could be ascertained as (freshly/old) torn due to the blood all over the region. He further told the court that the patient’s cervix was open due to abortion with bleeding and a foul-smelling blood from the genitalia due to post abortion. The remarks by the clinical officer were that there was positive case of defilement after confirming evidence of abortion and that the PDT test was still positive. The examination by PW- 6 was done on the 29th January 2025 whereas the offence was allegedly committed on diverse dates between August 2024 -January 2025. This therefore bolstered the evidence of PW1 that she was indeed speaking the truth. It is almost obvious that sexual assault cases especially those involving minors are committed in exclusion of eye witnesses. That is why the law came to the aid of these vulnerable victims by dint of the proviso to Section 124 of the Evidence Act. The same reads:“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.”The proviso stipulates that a court can convict an accused person in a sexual assault cases where the minor is the victim solely on the victim’s evidence as long as the court believes that the minor is speaking the truth. The court had no reason to doubt the testimony of the victim whom the Appellant upon being granted an opportunity to be cross examine did not pose any questions to the witness. As fate had it, the medical evidence capped it that she was indeed sexually assaulted as the Appellant who was her father took advantage of the victim and defiled her on several occasions. The confession proforma produced as exhibit before court clearly denotes accused stating in part “Nimekuwa na uhusiano wa kimapenzi na SA kwa kipindi cha mienzi mitano na hapo ndip aliweza kupata uja uzito”. The said confession added weight to the evidence before court and having granted an opportunity to the Appellant to defend himself upon being put on his defence chose to keep quiet and await the verdict of the court. Again, the Appellant did not challenge the confession and which was produced as an exhibit. Iam satisfied that the confession was properly obtained from the Appellant and that he was squarely placed at the scene of crime as the perpetrator. 25.As regards the aspect of identification of the Appellant as the perpetrator, I find that his identification was by way of recognition. He was a person well known to PW1 having lived together and besides, he was a father to the complainant and hence, the complainant had no difficulty in recognizing him. It transpired from the evidence that the Appellant had been defiling the minor for over five months before she got pregnant and thus the duo had been intimate for some reasonable time before the pregnancy ballooned and the secret came to light. Again, the confession made by the Appellant to PW8 left no doubt about the Appellant’s involvement as the assailant. The complainant had no reason whatsoever to frame up her own father as no evidence turned out that the family had any strife. 26.The age of a victim in a case of incest is paramount in view of the sentence as prescribed under Section 20(1) of the Sexual Offences Act. According to PW2, the victim’s mother, the complainant was Nineteen years old at the time and was born in 2006. The investigating officer PC Achoka Vincent (PW4) testified that the age of the victim was not clarified and that an age assessment was conducted dated the 10th February 2025 which was produced as PEXB-1 and which indicated that she was 16 years old. In Francis Omuroni -Vs- Uganda, Court of Appeal Criminal Appeal No. 2 of 2000 it was held thus:“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other, evidence. Apart from medical evidence, age may also be proved by birth certificate, the victim’s parents or guardian and by observation commons sense ..........”The Appellant also faced an alternative charge of committing Indecent at with a child contrary to Section 11 (1) of the Sexual Offences Act NO. 3 of 2006. The Act defines a child by deference to the Children Act No.8 of 2001 which defines a child as any human being under the age of eighteen years, In the Sexual offences Act “Indecent act “means an unlawful Intentional act which causes (a) any contact between any part of the body of a person with the genital organs, breasts or buttocks of another but does not include an act that causes penetration (b) exposure or display of any pornographic material to any person against his or her will. Under Section 11(1) any person who is convicted of the offence of committing indecent act to a child is liable for a term not exceeding 10 years. In the present case, the complainant (SA) who testified as PW1 upon an age assessment being conducted as there was no clarity indicated that as at 10th February 2025, she was aged 16 years old. I find that the prosecution sufficiently satisfied the first ingredient. 27.Further, as regards the aspect on identification of the Appellant as the perpetrator, the same was not in doubt as the complainant was categorical that it was her father who is the Appellant herein who had defiled her and impregnated her. PW1 testified that “POO alinishika” and “akanifanyia tabia mbaya” and that he took his thing and inserted into my thing. The victim further told court that the accused had sex with her several times and was on her mother’s bed. That the accused did the act many times and got her pregnant and subsequently lost the pregnancy as the accused took her to hospital to abort the child where she was given tablets which she took and the unborn child got out of her private part. That she was given tablets which she took and the unborn child got out of her private part. The confession proforma produced as exhibit before court clearly denotes accused stating “Nimekuwa na uhusiano wa kimapenzi na SA kwa kipindi cha mienzi mitano na hapo ndip aliweza kupata uja uzito”. The said confession added weight to the evidence before court and having granted an opportunity to the Appellant to defend himself upon being placed on his defense chose to keep quiet and await the verdict of the court. 28.This court is empowered by the above section to convict an accused person solely on the evidence of the complainant. The above position was affirmed in the case of J.W.A VS Republic (2014) eKLR, where the Court of Appeal held that:“We note that the appellant was charged with a sexual offence and the proviso to section 124 of the Evidence Act clearly states that corroboration is not mandatory. The trial court having conducted a voire dire examination of PW1 and being satisfied that the complainant was a truthful witness, we see no error in law on the part of the High Court in concurring with the findings of the trial magistrate”. 29.A similar position was taken in George Kioji VS. Republic (UR) where the Court of Appeal expressed itself as:“Indeed, under the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.”I am satisfied that PW1 though a child, spoke the truth. The trial court had the benefit of observing her demeanour during trial and was truthful and consistent in her narration of the incident and which was duly captured by the trial court. 30.From the foregoing observations, it is clear that the evidence presented by the Respondent regarding the offence in count 1 and the alternative thereof was proved against the Appellant beyond any reasonable doubt. Hence, the finding on conviction thereon by the trial court was quite sound and must be upheld. 31.As regards the offence in count two, it is noted that the Appellant was charged with an offence of killing an unborn child contrary to section 228 of the Penal Code which provides as follows:“Any person who, when a woman is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, he would be deemed to have unlawfully killed the child, is guilty of a felony and is liable to imprisonment for life.”The complainant (PW1) testified that “POO alinishika” and “akanifanyia tabia mbaya” and that he took his thing and inserted intoher thing. The victim further stated that the Appellant had sex with her several times and was on her mother’s bed. That the Appellant did the act many times and got her pregnant and subsequently lost the pregnancy when the Appellant later gave her some tablets to take and that when she started bleeding profusely, he took her to hospital to abort the unborn child which got out of her private parts. The clinical officer (PW6) stated that he examined the complainant and noted that she was bleeding from her private parts and that the foetus came out which the Appellant took it home and buried it. There was no doubt therefore that indeed there was an abortion that had been procured by the Appellant who used his influence upon the unsuspecting complainant which led to the killing of an unborn child. It is also noted that the Appellant made a confession confession which was duly recorded by PW8 and which in part read “Kwamba nilioa HA kipindi ambacho hawezi kumbuka na kwamba ntulijaliwa na watoto watano kati ya hao Watoto watano mmoja wao anaitwa SA ambaye nimekuwa na uhusiano wa kimapenzi na aliweza kupata mimba.” The Appellant further in his confession proforma stated that he went to a hospital in Bondo at Guba and bought drugs for a sum of KShs. 4000/= which he gave to the complainant (PW1) without informing her what they were for. That subsequently the Appellant took her to hospital as he had been instructed and later had the abortion procured and then placed the foetus in a box and took it home and buried it. The Appellant indicated that his wife was present at the hospital and that he had confessed to her that the pregnancy was his which really angered her. The Appellant further stated that he was the one who dug up the grave and buried the dead unborn child and that if asked, he could show where the grave was located. 32.It was further the evidence of Daniel Otolo Otolo (PW-7) that on the 17th January 2025 at 6pm while at his clinic at Township Medical Center in Bondo, one Mr. POO came with a girl called SA who was bleeding profusely with severe abdominal pains. That he rushed the said patient to the emergency room as the cervix was open and that the product of conception was coming out and that he proceeded to do manual vacuum aspiration and admitted the patient for observation. That the diagnosis was incomplete abortion and that a manual vacuum aspiration done. That on the 18th January 2025, the patient was stable and discharged and, on the 31st January 2025, he was visited by the police officers who directed him to go and record a witness statement. That he identified the Appellant in court as the man who accompanied the patient to hospital. I find that the evidence of PW1 and PW7 clearly placed the Appellant at the scene of crime regarding the offence in the second count. The Appellant was given a chance defend himself but that he opted to remain silent and await the verdict of the court. I find that the Appellant did not cast any doubt upon the evidence presented by the prosecution which was quite overwhelming against him regarding the said second count. 33.As regards the issue of the confession statement produced by PW8 as exhibit 7, the same was pursuant to the Out of Court Confessions Rules under the provisions of section 25 and 25A of the Evidence Act. Section 25 thereof defines a confession in the following terms:“A confession comprises words or conduct, or a combination of words and conduct from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence.”Section 25A provides that;“(1)A confession or any admission of a fact leading to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer) being an officer not below the rank of inspector of police, and a third party of the person’s choice.”(2)The Attorney General shall in consultation with the law society of Kenya, Kenya National Commission on Human Rights and other suitable bodies make rules governing the making of a confession in all instances where the confession is not made in court.Pursuant to the aforementioned sub-section (2) of S.25A of the Evidence Act, the Evidence out of court confessions Rules, 2009, were enacted. These are the rules the witness (PW-8) stated that he complied with when recording in writing the Appellant’s confession. Indeed, a proforma form made under the rules was duly signed by the recording officer (PW-8) and duly signed by the Appellant was entered in the confession. Its effect was to establish that the rules were indeed complied with by the witness when he recorded the confession from the Appellant. It is noted that the Appellant opted not to call an Advocate or a third party of his choice and went ahead to make the confession voluntarily. The production of the said confession was not objected to by the Appellant so that it could it be considered by the court. I find that the same was properly obtained by the recording officer who was an officer above the rank of an inspector of police. 34.An analysis of the entire evidence presented by the prosecution left no doubt that the same was watertight and placed the Appellant squarely at the scene of crime as the perpetrator of the offences in count 1, Alternative charge and count II. I find that the prosecution proved the said counts against the Appellant beyond any reasonable doubt. Hence, the finding on conviction by the trial court was proper and must be upheld. 8.35. Regarding sentence, it is noted that the Appellant was sentence t to serve life imprisonment on both counts 1 and 2 and which were ordered to run concurrently. In the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus as regards interference with sentence: -“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”The Court of Appeal in Bernard Kimani Gacheru vs. Republic [2002] eKLR restated that:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, 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 some wrong material, or acted on a 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 states is shown to exist.” 35.As regards aggravating factors and breach of trust, I find the sentence was justifiably imposed due to the presence of significant aggravating factors. The victim was merely a minor then aged 16 years old, a child of extremely tender years who required protection rather than predation. The victim was the Appellant’s own daughter whom he turned into a wife so to speak and he occupied a position of trust and authority over the child. The Appellant was already married and therefore it was extremely out of character to turn on his own female child to quench his sexual appetite on the hapless complainant. The conduct of the Appellant in impregnating his daughter and then pushing her to procure an abortion which almost caused her death in addition to the unborn child was a monstrosity beyond any comprehension. Again, the conduct of the Appellant in proceeding to receive the foetus and quietly burying it in his compound and then trying to live normally was quite strange. I find that the custodial sentence imposed was necessary to deal with the Appellant’s moral blameworthiness. In Mumbai v Republic [2014] eKLR, the court emphasized that breach of trust is a serious aggravating factor. The Appellant abused this trust by not only defiling the minor but also going ahead to force the victim to take some drugs meant for procuring an abortion of the unborn child and then proceeding to bury the foetus in his compound speaks to his moral blameworthiness. 36.As regards proportionality and protection of the public, the sentence of life imprisonment is proportionate to the offense and serves the interests of justice. The victim impact statement noted the trauma suffered by the child, and the medical evidence confirmed physical injury. Courts have consistently held that sentences in sexual offenses must reflect the societal outrage and the need to protect vulnerable children from sexual predators. Given the Appellant's lack of remorse and his action in pushing the complainant into procuring an abortion and later burying the foetus in his compound, I find that the life sentence ensures the protection of the public and serves as a deterrence, aligning with the principles of sentencing set out in the Sexual Offences Act, Criminal Procedure Code and the Judiciary Sentencing Policy Guidelines. Again, the Supreme Court in Republic Vs Joshua Gichuki Mwangi & Others Petition No. 18 of 2023, held that the minimum sentences provided for in the Sexual Offences Act remain lawful until the statute is declared unconstitutional. Hence, as matters stand, the sentence of life imprisonment is the appropriate sentence in count one which was imposed by the trial court. Also the sentence imposed pursuant to the provisions of section 228 of the Penal Code was warranted as the Appellant’s actions in arranging for the abortion led to the killing of the unborn child. Had the abortion not been carried out, the unborn child could have ended up being born a full human being. Iam therefore not inclined to interfere with the sentences imposed by the trial court as the same are the minimum possible in law and were warranted in the circumstances. 37.In the result, it is my finding that the Appellant’s appeal lacks merit. The same is dismissed. The conviction and sentences are hereby upheld. DATED AND DELIVERED AT SIAYA THIS 15TH DAY OF MAY 2026 D.KEME JUDGE In the presence ofPOO .........AppellantMs. Soita ........................for RespondentMs. Mourine ...................Court Assistant