https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10833

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MALINDI CRIMINAL APPEAL NO. E107 OF 2025 AMANI KATANA RUA……………………………………………………………………………..APPELLANT VERSUS REPUBLIC…………………………………………………………………………………………. RESPONDENT JUDGMENT ***(An appeal from the by Hon. R.M Amwayi Principal Magistrate in Kaloleni S.O E017 of 2025 dated 28th August, 2025)*** 1. The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. He also faces an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The appellant was found guilty of the main charge and sentenced to serve 20 years imprisonment. 2. According to the charge sheet the particulars of the main charge in which ne was convicted were that on diverse months between January and March, 2025 at (particulars withheld) within Kilifi County willfully and unlawfully penetrated the vagina of R.K.D a child aged 15 years. 3. The appellant aggrieved by the conviction and sentence of the trial magistrate lodged this appeal to the High Court. The appellant raised several grounds which are contained in the petition of appeal and amended grounds of appeal accompanying his submissions. Although the appellant seemed to challenge the conviction and sentence in his initial grounds of appeal contained in the petition of appeal, it appears that in the amended grounds of appeal and submissions, he abandoned his appeal against the conviction and pursued appeal on the sentence only. He argued that the trial court did not take into account his mitigation in meting the sentence. The respondent was however of the contrary view that the trial court considered the mitigations before imposing the sentence of 20 years. 4. As this is appeal is purely on sentence, the guiding principles applicable when the appellate court is dealing with sentence meted by the trial court were laid down long time ago in the case of ***Ogola Sio Awour vs Reginam (1954) E.A.C.A*** where the court held: ***“The principle upon which an appellate court will act in exercising its jurisdiction to review are firmly established. The court does not alter a sentence on the mere ground that if the members of the court had been the trying the appellant they might have passed a somewhat different sentence and will not ordinarily interfere with the discretion exercised by trial judge unless it is evident that the judge acted upon wrong principles or under-looked some material factor. To this we would add a third criteria, namely that the sentence is manifestly excessive in view of the circumstances of the case.”*** 1. From the foregoing it is clear that sentencing is at the discretion of the trial court. The appellate court can only interfere with the sentence by the trial court if the same is either manifestly harsh or extremely lenient. It is thus clear that the discretion of the trial court in sentencing is insulated from interference by the appellate court unless the statute set out minimum sentence. 2. What the trial court ought to consider in meting the sentence is proportionality, equality and uniformity in sentencing depending on the nature of the offence committed by the offender. Further in imposing the sentence the court must be guided by the principles of deterrence, rehabilitation, accountability for one’s action, protection of the society, retribution and denouncing the action of the offender. 3. Guided by the foregoing and having considered the appellant’s submissions, it is notable that the appellant was charged with defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The minimum sentence provide under Section 8(3) is not less than 20 years. The court considered the pre-sentence report in sentencing the appellant. The appellant was a friend to the complainant’s father. He was aged 32 years and preyed on his friend’s daughter who was 15 years old. According to the pre-sentence report it is reported that the victim relocated. She also became pregnant and gave birth. The appellant betrayed the trust the complainant’s father had with him. It is also worthwhile to note that the appellant impregnated the complainant. This is an aggravating factor. In the circumstances I have no reason to disturb the sentence imposed by the trial court. 4. The upshot is that the appeal herein fails and the same is dismissed and the finding of the trial court on sentence is upheld. **Dated, signed and delivered virtually this 20th day of July, 2026.** **Francis N. Kyambia** **Judge** **In the presence of** **Appellant appearing virtually** **Ms. Mutua for the respondent virtually** **Ms. Otwo Court Assistant**