https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11665

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **HIGH COURT CRIMINAL APPEAL NO. E027 OF 2025** **PAUL TIEMA**…………………………………………………….………**APPELLANT** **VERSUS** **REPUBLIC**…………………………………………………….………**RESPONDENT** *(Being an appeal against the conviction and sentence of Hon. P. Karimi, Resident Magistrate, in Case No. MCSO/E030/2024 in a judgment delivered on 10th December 2024)* **Before Justice R. Nyakundi** The Appellant, in person M/S Leina Davies for the Respondent Court Assistant: Lawreen **JUDGMENT** **INTRODUCTION** 1. The Appellant, Paul Tiema, was charged before the Magistrate's Court at Vihiga with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act, No. 3 of 2006. The particulars were that on diverse dates between 2nd May 2024 and 3rd May 2024 at Ebusikhale area, Luanda Sub-County within Vihiga County, he intentionally and unlawfully caused his penis to penetrate the vagina of D.O. (whose name is withheld to protect her identity, hereinafter “the victim” or “PW1”), a child aged 16 years. He faced an alternative count of committing an indecent act with a child contrary to section 11(1) of the same Act. 2. The Appellant denied the charges and was admitted to bond of Kshs. 100,000 with a surety of like amount. The prosecution called four witnesses. Upon a finding on 5th November 2024 that he had a case to answer, and after his options under Section 211 of the Criminal Procedure Code were explained to him in Kiswahili; the Appellant elected to give sworn testimony and called no witness. By a judgment delivered on 10th December 2024, the trial Court convicted him on the main count, and on 20th December 2024, after taking a pre-sentence report and his mitigation, sentenced him to fifteen (15) years' imprisonment. The alternative count was not analyzed, correctly, given the conviction on the main count. Having been granted leave to appeal out of time by Hon. Lady Justice J. Kamau in Misc. Application No. E026 of 2025, the Appellant, acting in person, now appeals against both conviction and sentence. **THE GROUNDS OF APPEAL** 1. By his Petition of Appeal dated 24th October 2025, the Appellant raised four grounds: that the trial Court erred in not proving the ingredients of the offence beyond reasonable doubt; that it relied on fanciful and remote possibilities to convict; that it failed to weigh conflicting evidence in the prosecution case; and that it failed to appreciate his cogent defence. By Supplementary Grounds of Appeal dated 8th February 2026, he added five further grounds: **(1)** that the trial Court erred in not informing him of his right to legal representation and according him an advocate at state expense, occasioning substantial injustice; **(2)** that identification and penetration by the Appellant were not proved beyond reasonable doubt and were not corroborated; **(3)** that the trial Court erred in adding probative value to PW1's testimony by allowing her to give sworn evidence when, in her *voir dire,* she had stated “I do not know the implication of taking oath”, such that her evidence ought to have been unsworn and incapable of founding a conviction without corroboration; **(4)** that the trial Court erred in not pointing out the demeanor of PW1 relied upon as the basis of accepting her evidence; and **(5)** that the trial Court erred in not directing that his sentence run from the date of his arrest on 11th May 2024. **THE EVIDENCE BEFORE THE TRIAL COURT** 1. PW1, the victim, was admitted to give sworn testimony following *voir* *dire* proceedings. She testified that on 2nd May 2024 she was at home with her two cousins, who left her doing the dishes as they went to collect firewood. Her uncle, the Appellant, returned from Luanda and made a verbal sexual demand of her, which she refused, and she went about her work. After supper that evening, the Appellant took her two cousins to sleep, leaving her alone; shortly afterwards he asked her to open the house so that he could charge his phone, and she complied. He repeated his sexual demands; she again refused; whereupon he held her forcefully by the shoulders, causing her to fall on the seat, holding her down with one hand, as he pulled off her underwear and defiled her on the seat. She told him he was hurting her; and suffered bleeding due to the acts of defilement. He told her to persevere, and when he was done he asked her to wipe off the blood, and the following morning to wash the streams of blood stained clothes. She further testified that he defiled her again the following night, which she tried screaming and that she told one Mama Junior what had happened, whereupon the Appellant, on learning that she had spoken, accosted her behind the house. She reported to a friend's mother, who relayed the matter to a Community Health Volunteer, and she was later taken to hospital and to Luanda Police Station. On cross-examination she stated that she had come to live with the Appellant in March, after the burial of her father. 1. PW2, the Clinical Officer from Luanda Town Dispensary, examined the victim on 6th May 2024 and produced her treatment notes as PEXB 2, the P3 form as PEXB 3 and the Post Rape Care Form as PEXB 4. His findings were bruises on the vaginal walls and around the clitoris and the labia minora and majora, white vaginal discharge, a bacterial infection in her urine, and the presence of epithelial cells and leucocytes, which evidenced penetration. The treatment notes recorded lacerations on the vulva region and posterior opening, a freshly broken hymen with fresh bruises on its edge, and tenderness on examination. No spermatozoa were noted. He testified that the victim was already on HIV medication, that the injuries were three to four days old, and that in his expert opinion there had been penetration by a human penis. 2. PW3, Beatrice Nora Otuma, testified that on 6th May 2024 she received a call from a Community Health Promoter from Epanga, one Damaris Osiolo, informing her of the incident; she advised that the minor be taken to hospital and joined them there, and after the examination took the survivor to Luanda Police Station to report. She questioned the minor, who narrated the incident to her. 3. PW4, the Investigating Officer, PC Hellen Okumu of Luanda Police Station, testified that the report was booked under OB No. 46/6/5/2024; she recorded statements, visited the scene, obtained a copy of the victim's birth certificate showing her date of birth as 17th September 2007, making her 16 years old at the material time, which she produced as PEXB 1, and arrested the Appellant with the help of a village elder. On cross-examination she stated that the Appellant's house was about 50 metres from the grandmother's house, that it was PW1 who identified him as her uncle and assailant, and that the Appellant was not taken to hospital after his arrest. 4. In his sworn defence, the Appellant testified that he was arrested at 5.00 p.m. at the village elder's homestead by Police Officers in civilian clothes, after the village elder identified him from among about five other men; he was handcuffed and his face was covered with his clothes. He denied the charges. Both sides elected to rely on the proceedings on record without making closing submissions. 5. The trial Court found the age of the victim proved by the birth certificate (PEXB 1); found penetration proved on the victim's testimony as corroborated by the treatment notes, P3 form and Post Rape Care form; found the Appellant positively identified by recognition as the uncle with whom the victim had lived for about two months, observing that she was coherent in Court and that her testimony was believable as corroborated; considered the Appellant's testimony and found it to be mere denials alluding only to his arrest, with no controverting *alibi* for the material dates; and convicted him as charged. **THE APPELLANT'S SUBMISSIONS** 1. The Appellant filed written submissions on his supplementary grounds. On legal representation, he relied on Article 50(2)(g) and (h) of the Constitution, the Legal Aid Act, 2016, *Thomas Alugha Ndegwa v Republic, Criminal Appeal No. 2 of 2004*, where the Court of Appeal allowed an application for legal representation by an Appellant convicted of defilement, *Leonard Maina Mwangi v DPP & 2 Others [2017] eKLR*, citing the Supreme Court of India in *Zahira Habibullah Sheikh & Another v State of Gujarat & Others, AIR 2006 SC 1367* on the fairness of trials, and *Joseph Ndungu Kagiri v Republic [2016] eKLR*. He submitted that, facing a heavy minimum sentence of fifteen years under Section 8(4), he was a layman and a pauper, confused, fearful and wanting in intelligence, unable to bring out points in his own favour; that he was not supplied with all the prosecution statements and documents (the P3 form, PRC form and treatment notes), such that he cross-examined the Clinical Officer (PW2) without them; and that when he later demanded them and asked that PW2 be recalled for further cross-examination under Section 150 of the Criminal Procedure Code, the trial Court disregarded his request as an afterthought. 2. On the sworn evidence of PW1, the Appellant submitted that in her *voir dire* the complainant stated “I do not know the implication of taking oath”, and that it was therefore an error in law to swear her; her evidence ought to have been received unsworn, in which case corroboration was necessary, relying on *Mercy Kajuju & Others v Republic [2009] eKLR*, *Oloo v Republic [2009] KLR* and *Johnson Muiruri v Republic [1983] KLR*. He posed three questions: under which source of light at night PW1's identification by recognition was made; whether it was legally right to swear PW1 when she did not understand the consequences; and who else saw or heard the events she described, including her account of the Appellant's verbal demand, the blood in the house, and the washing of the blood-stained clothes. 3. On penetration and identification, the Appellant submitted that the persons PW1 said she was with in the grandmother's house were not called to corroborate her, nor were the persons she informed; that the Clinical Officer did not see who defiled her; that the incident occurred at night and no source of light was established; that PW1 was HIV positive while the Appellant is HIV negative; that no DNA test connected him to the penetration; that the Investigating Officer did not verify that the grandmother's house had electricity or batteries to charge a phone as PW1 alleged; and that, there being an allegation of two perpetrators, a DNA test would have been the sole conclusive link. He relied on *Pius Arap Maina v Republic [2013] eKLR* on evidential gaps being resolved in favour of the accused, and prayed that the conviction be quashed and, in the alternative, relying on *Ndabi v Republic [1987] KLR 304*, that his sentence be ordered to run from the date of his arrest on 11th May 2024. **THE RESPONDENT'S SUBMISSIONS** 1. Learned Prosecution Counsel for the Republic opposed the appeal. On the ingredients of defilement, Counsel relied on *Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013*. On age, Counsel cited *Musyoki Mwakavi v Republic [2014] eKLR* and submitted that PW4 produced the birth certificate (PEXH 1) showing the victim's date of birth as 17th September 2007, making her a minor of 16 years, which evidence the Appellant did not rebut. On penetration, Counsel relied on Section 2 of the Act and *Mohammed Omar Mohammed v Republic [2020] eKLR*, submitting that PW1's account of being held forcefully by the shoulders, falling on the seat and being penetrated, telling the Appellant he was hurting her and bleeding, was corroborated by PW2's findings. On identification, Counsel submitted that the Appellant was the victim's uncle, well known to her, and that this was recognition, citing *Anjononi & Others v Republic (1976-80) 1 KLR 1566, 1568*. 2. On the defence, Counsel submitted that the Appellant gave a sworn statement, denied the charges, and described his arrest of 11th May 2024 at the village elder's home; that the trial Court considered his defence and found the case proved beyond reasonable doubt; and that his claim that his defence was not considered is without merit. On contradictions, Counsel relied on *S.O.O v Republic [2018] eKLR* adopting *Dickson Elia Nsamba Shapwata & Another v The Republic, Criminal Appeal No. 92 of 2007 (Court of Appeal of Tanzania)*, submitting that no substantial inconsistencies going to the root of the matter were shown. On sentence, Counsel relied on Section 8(4) of the Act, which prescribes a term of not less than fifteen years; on *Republic v Joshua Gichuki Mwangi, Supreme Court Petition No. E018 of 2023*, that Parliament and not the judiciary sets the parameters of sentencing and that minimum sentences set the floor rather than the ceiling; on *Shadrack Kipchoge Kogo v Republic, Criminal Appeal No. 253 of 2003 (Eldoret)* on the limited grounds for appellate interference with sentence; and on Section 329 of the Criminal Procedure Code, noting that the trial Court called for a pre-sentence report and stated that it had considered the period the Appellant spent in remand. Counsel urged that the conviction and sentence are safe, lawful and proper, and that the appeal be dismissed having regard to the gravity of the offence. **ANALYSIS AND DETERMINATION** **THE DUTY OF A FIRST APPELLATE COURT** 1. This being a first appeal, my duty, as settled in *Okeno v Republic [1972] EA 32*, is to subject the entire evidence to a fresh and exhaustive re-examination, weigh it, and reach my own conclusions, while giving due allowance for the fact that I neither saw nor heard the witnesses testify. The grounds, original and supplementary, resolve into six issues: (i) whether PW1 was properly sworn and whether her evidence required corroboration; (ii) whether the Appellant's fair-trial rights, including legal representation, the supply of statements and the recall of PW2, were violated; (iii) whether the ingredients of the offence, namely age, penetration and identification, were proved beyond reasonable doubt; (iv) the effect of the witnesses not called; (v) whether the defence was properly evaluated; and (vi) the legality and propriety of the sentence, including its commencement date. 2. Some of the issues which the Appellant has grappled with touch on the veracity and credibility of witnesses in which he held the view that the inconsistencies and discrepancies were such a nature that the trial Court shall not have sustained his belief as to the existence of facts with regard to the circumstance of the offence as provided for under Section 107(1) of the Evidence Act. As I proceed to examine this crucial aspect, it may be apposite to keep in mind certain observations made by this Court relating to discrepancies in the second of eye witnesses as observed in the persuasive case of *Leela Ram (Dead) through Duli Chand v State of Haryana, (1999) 9 SCC 525*. Thus: *“9. Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in State of U.P. v. M.K. Anthony [(1985) 1 SCC 505: 1985 SCC (Cri) 105]. In para 10 of the Report, this Court observed: (SCC pp. 514-15)'10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals.* *In a very recent decision in Rammi v. State of M.P. [(1999) 8 SCC649: 2000 SCC (Cri) 26] this Court observed: (SCC p.656, para 24)'24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.'* 1. Given the strength of these principles the Appellant has not demonstrated that the evidence relied upon by the trial Court is impeachable for reason of inconsistencies, contradictions and discrepancies. That line of argument has been juxtaposed over the entire scope of the testimonies by witnesses summoned by the State to discharge the standard and burden of proof of beyond reasonable doubt with regard to the elements of the offence in which the Appellant was indicted by the DPP under Article 157(6) (7) of the Constitution. My take is that any such arguments and submissions to challenge the impugned judgment of the trial Court is not tenable. ***(i) The swearing of PW1 and the question of corroboration*** 1. The victim of the offence generally referred in procedural protocol as the complainant is actually a star witness for she or he suffers the blunt of any unlawful act of omission which eventually results in a prosecution of the offender. This case did involved a minor as defined under the Children’s Act and correspondingly the class of victims being covered by the Sexual Offences Act on defilement offences. Their evidence in terms of admission by a Court of law is well structured and provides a framework upon which a trial Court is able to abide. 2. The victim's documented age was 16 years. The category of “child of tender years”, for whom the *voir dire* under Section 19(1) of the Oaths and Statutory Declarations Act is designed, has long been understood, since *Kibangeny Arap Kolil v Republic [1959] EA 92*, to mean a child under the age of fourteen years. A 16-year-old is not a child of tender years; she was presumptively a competent witness under Section 125 of the Evidence Act and entitled, indeed expected, to testify on oath. The *voir dire* the trial Court nonetheless conducted was an act of caution, prudent perhaps because the child described herself in her testimony as 14 years old, but it could not demote a competent witness's evidence. The Appellant's contention that a witness who professed not to know “the implication of taking oath” ought to have testified unsworn assumes the very framework, that of tender years, which her age displaces. 3. However, the ground fails even on its own terms, thrice over. First, on the Appellant's own authority, *Johnson Muiruri v Republic (supra)*, the sworn evidence of a child given after a *voir dire* requires no corroboration in law; the Court need only warn itself in practice, and the trial Court here tested and accepted the victim's account against corroborating evidence in any event. Secondly, this being a sexual offence, the proviso to Section 124 of the Evidence Act permits a conviction on the victim's evidence alone where the Court, for recorded reasons, is satisfied she is truthful; the trial Court recorded that the victim was coherent in Court and that her testimony was believable as corroborated by the evidence adduced, which, read with its analysis as a whole, satisfies the proviso and answers supplementary ground 4 on demeanour. Thirdly, and decisively, corroboration existed in abundance: the medical findings of injuries three to four days old, a freshly broken hymen with fresh bruises on its edge, lacerations on the vulva and bruises on the vaginal walls, clitoris and labia, matched the victim's account of forceful penetration on the material dates in every particular. Whether her evidence is treated as sworn or unsworn, the outcome is the same, and any irregularity in the mode of its reception, had there been one, would be curable under Section 382 of the Criminal Procedure Code as occasioning no failure of justice: See also *Maripett Loonkomok v Republic [2016] eKLR*. ***(ii) Legal representation, the statements and the recall of PW2*** 1. Article 50(2)(g) of the Constitution guarantees the right to choose and be represented by an advocate and to be informed of that right promptly; Article 50(2)(h) guarantees an advocate at State expense *if substantial injustice would otherwise result*. As held in *David Njoroge Macharia v Republic [2011] eKLR*, State-funded representation is not automatic in every criminal case but is conditioned on the prospect of substantial injustice. *Thomas Alugha Ndegwa CR COA NO. 2 of 2024*, on which the Appellant relies, was a case in which representation was granted upon application for an appeal; it is not authority that a trial conducted without Counsel is thereby vitiated. The record of this trial shows an accused who engaged fully and, it must be said, capably: he cross-examined the witnesses, filed written submissions on the case to answer dated 3rd October 2024, had his Section 211 options explained to him in Kiswahili, elected to give sworn evidence, and has prosecuted this appeal with organised and researched submissions. Weighing his actual participation against the seriousness of the charge, I am not persuaded that substantial injustice resulted from the absence of Counsel, and this ground fails. 2. As to the complaint that the Appellant was not supplied with the P3 form, PRC form and treatment notes before cross-examining PW2, and that his subsequent request for the documents and for the recall of PW2 under Section 150 of the Criminal Procedure Code was disregarded as an afterthought. Taking the complaint at its highest, however, I am unable to find prejudice occasioning a failure of justice: the three documents were produced in open Court through their maker, PW2, in the Appellant's presence; he cross-examined PW2; the recall power under Section 150 is discretionary and its refusal, at a point after the prosecution had closed, was a discretionary call; and, most tellingly, even now on appeal, with the full record in hand, the Appellant has not identified any question he was prevented from asking PW2 or any answer that could have altered the medical findings. An irregularity, if any, was curable under Section 382 of the Criminal Procedure Code. ***(iii) The ingredients of the offence*** 1. **Age**: The birth certificate (PEXB 1) produced by PW4 showed the victim's date of birth as 17th September 2007, making her 16 years old in May 2024, and the Appellant did not challenge it. It is true that the victim described herself in testimony as 14 years old; the documentary evidence is the best evidence and prevails, in accordance with *Musyoki Mwakavi (supra)*. The discrepancy is, moreover, one from which the Appellant benefited: had the victim been 14, the applicable provision would have been Section 8(3), carrying a minimum of twenty years; the prosecution charged, and the trial Court convicted and sentenced, on the footing of 16 years under Section 8(4), the interpretation most favourable to him. On either footing she was a child, and age was proved beyond reasonable doubt. 2. **Penetration**: The victim gave a detailed first-hand account of two successive nights of forced penetration on a seat in the house, preceded each time by a verbal demand and a refusal, accompanied by pain and bleeding, and followed by instructions to wipe and wash away the blood. Her account was corroborated by PW2's examination three to four days later: a freshly broken hymen with fresh bruises on its edge, lacerations on the vulva region and posterior opening, bruises on the vaginal walls, clitoris and labia, tenderness, discharge, and leucocytes and epithelial cells in the urine, findings from which PW2, as an expert, opined that there had been penetration by a human penis. The correspondence between account and injury, in nature, location and age, is complete. 3. The Appellant's forensic points do not dent this. The absence of spermatozoa, expressly noted in the exhibits, is unremarkable days after the event and explains equally why no DNA comparison was available; DNA evidence, valuable where it exists, has never been a legal precondition of conviction where the victim's credible account is otherwise corroborated, and the premise that “two perpetrators” were alleged finds no support anywhere in the record, in which the victim named one man only: her uncle. The submission built on HIV status collapses on the evidence: PW2 testified that the victim was already on HIV medication, so that her status predated the offence and can neither implicate nor exculpate anyone; and PW4 confirmed that the Appellant was never taken to hospital after his arrest, so that his asserted negative status is not in evidence at all. In any event, serodiscordance after one or two acts of intercourse proves nothing, as transmission is not inevitable. Finally, whether the grandmother's house had electricity or batteries is a peripheral matter incapable of displacing the injuries; the applicable test, per Dickson Elia Nsamba Shapwata (supra) as adopted in S.O.O v Republic (supra), is whether discrepancies go to the root of the matter, and none of these does. Penetration was proved beyond reasonable doubt. 4. **Identification**: The Appellant's complaint about the source of light invokes the caution in *Maitanyi v Republic [1986] KLR 198* concerning identification by a single witness in difficult conditions. But that caution is addressed to the identification of strangers glimpsed in poor light; this was the recognition of the victim's own uncle, with whom she had lived since March, inside the house, in the course of protracted interactions that began in daylight with his verbal demand, continued through supper, the taking of the cousins to bed and his request to charge his phone, and extended over two successive nights and into the following mornings, with conversation before, during and after each incident. As held in *Anjononi & Others v Republic (supra)*, recognition is more satisfactory, more assuring and more reliable than identification of a stranger. The Appellant, in his own sworn testimony, did not deny being the uncle so identified; his complaint was as to the manner of his arrest. There is no room for mistaken identity, and identification was proved beyond reasonable doubt. ***(iv) The witnesses not called*** 1. The Appellant complains that the cousins, Mama Junior, Damaris Osiolo and others were not called. Under Section 143 of the Evidence Act no particular number of witnesses is required to prove any fact, and the principle in *Bukenya v Uganda [1972] EA 549* permits an adverse inference only where the prosecution withholds essential and available evidence. The cousins had been taken to bed before each incident and could speak to nothing material; the recipients of the victim's reports could at best have repeated what she told them, which she herself proved and PW3 in part did; and the essential witnesses, the victim, the examining clinician and the Investigating Officer, all testified. No adverse inference arises. ***(v) The evaluation of the defence*** 1. The trial Court expressly considered the Appellant's sworn testimony and characterized it, accurately, as a bare denial coupled with an account of his arrest, unaccompanied by any alibi for the material dates. My own re-evaluation yields the same result: the defence joined no issue with the substance of the prosecution case, offered no account of the Appellant's whereabouts on the nights of 2nd and 3rd May 2024, and did not deny the relationship or cohabitation on which the recognition rested. It could not, weighed against the victim's corroborated account, raise a reasonable doubt. Ground four of the petition fails, as do the residual complaints of fanciful possibilities and unweighted contradictions, none of which was particularized to the threshold the law requires. ***(vi) Sentence*** 1. Section 8(4) of the Sexual Offences Act prescribes, for defilement of a child aged between sixteen and eighteen years, imprisonment for a term of not less than fifteen years. The sentence imposed, fifteen years, is the statutory minimum, arrived at after a pre-sentence report and mitigation. Its lawfulness is settled by *Republic v Joshua Gichuki Mwangi KESC 31 (KLR) (Petition E018 of 2023)*, by which this Court is bound under Article 163(7) of the Constitution: minimum sentences set the floor of the Court's discretion, and it is Parliament that sets the parameters. Nor is there any basis for interference on the principles in *Shadrack Kipchoge Kogo v Republic Criminal Appeal No. 253 of 2003 (Court of Appeal at Eldoret)*: no irrelevant factor was considered, no wrong principle applied, and a sentence fixed at the statutory minimum cannot be stigmatized as manifestly harsh or excessive for the repeated defilement of a bereaved 16-year-old niece by the uncle in whose household she had sought refuge. 2. The Appellant's final prayer, that his sentence run from the date of his arrest on 11th May 2024, invokes Section 333(2) of the Criminal Procedure Code, whose proviso obliges a Court, in passing a term sentence, to take account of the period the accused spent in custody, and *Ndabi v Republic [1987] KEHC 80 (KLR) (Criminal Appeal No. 875 of 1986)* is to like effect. The record indicates that the trial Court stated that it had considered the period spent in remand. For the avoidance of any doubt, however, and to give full effect to Section 333(2), I shall direct that the sentence be computed as commencing on the date of the Appellant's arrest, [subject to confirmation on the record that the Appellant remained in custody throughout the trial, he having been admitted to bond terms]. **DISPOSITION** 1. In the result, the appeal against conviction fails and is dismissed. The conviction of the Appellant for defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act, No. 3 of 2006, is affirmed. The appeal against sentence equally fails, save that, for the avoidance of doubt and pursuant to the proviso to Section 333(2) of the Criminal Procedure Code, the sentence of fifteen (15) years' imprisonment shall be computed as running from 11th May 2024, the date of the Appellant's arrest. 2. The right of further appeal to the Court of Appeal within fourteen (14) days is explained to the Appellant. It is so ordered. **JUDGMENT DATED, SIGNED AND DELIVERED AT VIHIGA THIS 27TH DAY OF JULY 2026.** ................................................. **R. NYAKUNDI** **JUDGE**