David v Republic (Criminal Appeal E026 of 2025) [2026] KECA 1517 (KLR) (31 July 2026) (Judgment)

David v Republic (Criminal Appeal E026 of 2025) [2026] KECA 1517 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1517 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Appeal E026 of 2025 F Tuiyott, MN Nduma & M Sila, JJA July 31, 2026 Between Samuel Nzioka David Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Machakos, (D. K. Kemei, J) dated 10th April, 2019) in HC Cr. A. No. 46 of 2018) Judgment 1.The appeal before us emanated from the proceedings in the Machakos Chief Magistrates’ Court Criminal Case No. 24 of 2016, where the appellant, Samuel Nzioka David, was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 7th September 2016, at [Particulars Withheld] sub-location in Kathiani sub-county within Machakos County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of ASE, a child aged 14 years. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, the particulars being that he intentionally and unlawfully touched the vagina of ASE with his penis. 2.The appellant pleaded not guilty, and the respondent called six witnesses to prove its case. ASE testified that she was 14 years old, and on the material day at around 7.00 pm, the appellant lured her behind the plot, asked her to remove her clothes, and proceeded to have sexual intercourse with her. She stated that this was not the first time, as she had had sex with the appellant on three previous occasions, and she was pregnant with his child. Her mother recounted that she found the appellant on top of her daughter behind the plot, illuminated them with a torch, and confronted him, whereupon the appellant offered money for an abortion. Catherine Mbula confirmed seeing ASE go behind the plot with the appellant and later witnessed the confrontation. Florence Nduku corroborated the mother’s account, stating she found the appellant with PW2 and ASE hiding nearby, and later called the police. Dr. Dorah Awori examined ASE, confirmed she was 14 years old, had no hymen, was pregnant, and found spermatozoa, inferring penetration, and also examined the appellant. PC Chepkemoi Rono received the report, escorted ASE and the appellant for medical examination, and later facilitated DNA testing. Finally, Nelly Maurine Papa of the Government Chemist confirmed through DNA analysis that the appellant was the biological father of ASE’s child with a probability of 99.99 percent. 3.The appellant was found with a case to answer and when called upon gave unsworn testimony. He denied the charge, stating that he was at Kangundo during the day and only returned to Kathiani in the evening. He admitted knowing ASE but claimed he thought she was 18 years old. He acknowledged that ASE had his child and expressed willingness to take responsibility. 4.Upon evaluating the evidence, adduced by both the prosecution and the defendant, the trial court convicted the appellant of the offence of defilement and sentenced him to twenty years imprisonment. 5.Being dissatisfied with both conviction and sentence, the appellant lodged an appeal in the High Court at Machakos, being Criminal Appeal No. 46 of 2018. He challenged the findings of the trial court on several grounds, namely that he was convicted on inconsistent and contradictory evidence; that the charge sheet did not disclose the offence; that no voire dire examination was conducted on PW1; and that his defence was not considered. 6.Upon a careful re-evaluation of the entire record of appeal together with the submissions advanced by both the appellant and the respondent, the High Court reached the conclusion that the appellant had indeed engaged in sexual intercourse with PW1. 7.In arriving at this finding, the court observed that the appellant’s own testimony was contradictory and inconsistent, in that he denied involvement with the complainant yet simultaneously admitted responsibility for the child and even expressed willingness to take parental responsibility. The Court emphasized that the DNA evidence produced in the proceedings was conclusive, establishing beyond reasonable doubt that the appellant fathered PW1’s baby, thereby proving both penetration and identification as required under the Sexual Offences Act. 8.The Court further held that the inconsistencies and contradictions raised by the appellant were minor, inconsequential, and incapable of dislodging the core of the prosecution’s case. It noted that the complainant’s evidence was cogent, credible and was corroborated by her mother, other witnesses and medical testimony. 9.That the appellant’s defence amounted to a mere denial which could not withstand the overwhelming weight of the prosecution evidence. The Court was therefore satisfied that the essential ingredients of the offence of defilement being penetration, age of the victim, and proper identification of the perpetrator had been duly established. Consequently, the High Court found that the conviction entered by the trial court was sound in law and supported by credible evidence. It also held that the sentence imposed was lawful and commensurate with the gravity of the offence. The appeal was thus dismissed, and both the conviction and sentence of twenty years imprisonment were upheld. 10.The appellant, being aggrieved again with the decision of the first appellate court, through the undated amended memorandum of appeal, raised two grounds namely: that the learned Judge erred in law by failing to independently and impartially analyze the trial court’s proceedings as required under Article 165(7) of the Constitution and Section 362 of the Criminal Procedure Code, thereby disregarding the mandatory requirement under Section 333(2) of the Criminal Procedure Code to deduct the period the appellant had spent in remand custody from the imposed sentence; and further, that the learned Judge erred in law by upholding a sentence that was harsh and excessive despite the provisions of Sexual Offences Act. 11.During the hearing of the appeal, Ms. Margret Matiru, the State Counsel representing the Director of Public Prosecutions (DPP), withdrew Notice to enhance Sentence that had hitherto been filed just before the hearing of the appeal. We had no issue with that withdrawal, which we allowed. However, we hasten to state that the filing of notices to enhance sentence is not appropriate unless strictly done within the parameters of Rule 61 (7) of the Court of Appeal Rules, 2022, which requires that such notice be given within one month of the sentence. A notice to enhance sentence filed by the DPP prior to a hearing, as happened in this instance, may lead to an induced withdrawal of appeal by the appellant, based on a misplaced apprehension of the possibility that this court might enhance the sentence imposed by the Subordinate Court and/or the High Court. 12.Through his undated submissions, the appellant submitted that this appeal arises from the decision of the High Court at Machakos which upheld both the conviction and sentence imposed by the trial court. He contends that the first appellate court failed to properly apply Section 333(2) of the Criminal Procedure Code by not deducting the period he had spent in remand custody, thereby occasioning a disproportionate punishment contrary to the Sentencing Policy Guidelines (2023). 13.The appellant further argued that the sentence of twenty years’ imprisonment, though the statutory minimum, was harsh and excessive in the circumstances, particularly given that the prosecution’s case did not meet the threshold envisaged under Section 33(1)(a) of the Sexual Offences Act. He therefore urged this Court to intervene, discount the period spent in custody, and reconsider the sentence to ensure fairness and proportionality. 14.Through their submissions dated 13th March 2026, the respondent opposed the appeal, maintaining that the sentence imposed was lawful, proportionate, and consistent with Section 8(3) of the Sexual Offences Act No. 3 of 2006, which prescribes a minimum of twenty years’ imprisonment for defilement of a child aged between twelve and fifteen years. 15.The respondent argued that the appellant’s claim of harshness or unlawfulness was unfounded, citing authorities including the case of Onesmus Safari Ngao vs Republic [2019] KEHC 271 (KLR) and the Supreme Court’s pronouncements in Francis Karioko Muruatetu & Another vs Republic Petition No. 15 and 16 of 2017 KESC KLR (14/12/2017) which clarified that mandatory and minimum sentences under the Sexual Offences Act remain valid and constitutional. 16.The respondent emphasized that sentencing discretion lies with the trial court and in respect of a sexual offence under Section 8(3) of the Sexual offences Act, the court may enhance the sentence above the minimum sentence where aggravating circumstances are demonstrated or reduce it where the same is manifestly excessive. That the trial court in the present case imposed the minimum sentence of twenty years only and this court lacks jurisdiction to interfere with it. 17.However, the respondent conceded that under Section 333(2) of the Criminal Procedure Code, the eight months and three days the appellant spent in remand custody ought to be factored into the final computation of the sentence. They therefore urged this Court to dismiss the appeal save for adjusting the sentence to account for the remand period. 18.The court has carefully considered the record of appeal and the submissions by the parties and has delineated the following issues for determination: -(a)Whether this court on second appeal has jurisdiction to interfere with the minimum sentence imposed by the trial court and confirmed by the High Court.(b)Whether the courts below erred on a point of law by failing to demonstrably take into account the period the appellant spent in custody before conviction. 19.The duty of this Court on a second appeal is circumscribed by law under Section 361(1) (a) of the Criminal Procedure Code. 20The court in this regard notes the provisions of Section 361 of the Criminal Procedure Code (CPC) titled ‘’Second Appeals’’ as follows: -“(1)A party to an appeal from Subordinate Court may subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this Section-(a)On a matter of fact, and severity of sentence is a matter of fact; or(b)Against sentence, except where a sentence has been enhanced by the High Court, unless the Subordinate Court had no power under Section 7 to pass the sentence (Emphasis added)This principle has been consistently affirmed by the courts. In Kaingo vs Republic [1982] KLR 213, this Court held that:“A second appeal must be confined to points of law. The Court of Appeal will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence, or misapprehension of the evidence, or the courts acted on wrong principles in reaching their findings.” 21.Similarly, in Njoroge vs Republic [1982] KLR 388, the court reiterated that it is not the function of this Court to re-evaluate evidence unless it is demonstrated that the lower courts misdirected themselves on matters of law. 22.As may be observed from the foregoing, severity of sentence is a question of fact, which ought not to be presented on a second appeal unless the sentence was unlawful, which would then escalate the issue to one of law. In our case, the sentence of 20 years was lawful as it is a sentence prescribed under Section 8 (3) of the Sexual Offences Act. Before the High Court, the appellant did not urge the point that this sentence is unlawful or unconstitutional, and given that position, it would be improper for this Court to revisit the sentence imposed as this would be a question of fact. 23.The defiled minor in the present case was 14 years at the time the crime occurred and the trial court upon finding the appellant guilty imposed the sentence of twenty years which sentence was confirmed by the superior court. This sentence is not illegal as it is provided for in the law. Accordingly, this Court finds no reason to interfere with the decision of the trial court and the High Court on the issue of the severity of sentence. 24.With regard to the second issue, that is taking into account the time spent in custody, Section 333(2) of the Criminal Procedure Code provides 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.” 25.This provision is couched in mandatory terms. The Judiciary Sentencing Policy Guidelines (2023), at paragraphs 2.3.18 and 2.3.19, emphasize that courts must deduct the period spent in custody when pronouncing sentence, failure to which results in disproportionate punishment in the following terms: -“Section 333 (2) of the Criminal Procedure Code obligates the court to taken into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offences that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond.’’This Court has numerously pronounced itself on the matter. We associate ourselves with the decision in Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR where this Court differently constituted held that:“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code… By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.” 26.The same Court in Bethwel Wilson Kibor vs Republic [2009] eKLR articulated the principle in the following terms:“By proviso to section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody. Ombija, J. who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at 22nd September, 2009 he had been in custody for ten years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. 27.It follows, therefore, that the obligation under Section 333(2) of the Criminal Procedure Code to account for time spent in custody during trial is peremptory. As the authorities have consistently held, non-compliance with this requirement results in the imposition of a sentence more severe than that prescribed by law and effectively sanctions unlawful deprivation of liberty. 28.It is thus imperative that the trial court in pronouncing any sentence must expressly and unequivocally deduct the period already in custody. 29.Applying the above principles, we find that the sentence of twenty years imprisonment imposed on the appellant was lawful under Section 8(3) of the Sexual Offences Act. However, the failure by both the trial court and the first appellate court to deduct the eight months and three days the appellant spent in remand custody contravened Section 333(2) of the Criminal Procedure Code. 30.Accordingly, we uphold the conviction and confirm the sentence of twenty years imprisonment but direct that the said sentence shall be computed from the date of arrest, which is 7th September 2016. The Appeal thus partially succeeds to that limited extent. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.F. TUIYOTT……………………………JUDGE OF APPEAL NDUMA NDERI……………………………JUDGE OF APPEAL MUNYAO SILA……………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR