https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8896

TOO alias T v Republic (Criminal Appeal E034 of 2025) [2026] KEHC 8896 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 8896 (KLR) Republic of Kenya In the High Court at Homa Bay Criminal Appeal E034 of 2025 OA Sewe, J May 22, 2026 Between TOO Alias T Appellant and Republic Respondent (Being an appeal against the conviction and sentence Chief Magistrates’ Court at Homa Bay in Criminal Case No. E048 of 2024 dated 27th May 2025) Judgment [1]This is an appeal from the conviction and sentence imposed on the appellant, Timothy Oduor Otieno alias Timo. The appellant was arraigned before the lower court on the 16th December 2024, charged with the offence of incest contrary to Section 20(1) of the Sexual Offences Act, No. 3 of 2006. The particulars were that on 11th December 2024 at Homa Bay Sub County within Homa Bay County, he caused his penis to penetrate the vagina of L.A., a child aged 10 years who to his knowledge was his sister. [2]In the alternative, the appellant was charged with committing an indecent act with a child contrary Section 11 (1) of the Sexual Offence Act No. 3 of 2006; in that on 11th March 2023 at Homa Bay Sub County within Homa Bay County, he intentionally touched the vagina of L. A, a child aged 10 years. [3]The appellant pleaded not guilty to the charges. Upon trial, he was found guilty of the substantive count of incest in a judgment delivered on 29th April 2025. The appellant was accordingly sentenced to life imprisonment on 27th May 2025. [4]Being dissatisfied with the decision of the trial court, the appellant filed this appeal on the grounds that:(a)The learned magistrate erred in law and fact in convicting him on the basis of contradictory evidence.(b)That the learned magistrate erred in law and fact in convicting and sentenced him without considering his defence.(c)That he could not recall everything that transpired during the hearing. [5]The appellant urged the court to quash his conviction and acquit him of all the charges herein. He thereafter filed Amended Grounds of Appeal along with his written submissions. In his Amended Grounds of Appeal, he contended that his rights to fair hearing under Article 50 of the Constitution were violated. He also took issue with the sentence of life imprisonment imposed on him by the lower court. [6]The appeal was canvassed by way of written submissions, pursuant to the directions given herein on 27th October 2025. The appellant relied on his undated written submissions aforementioned. He contended that the evidence presented against him before the lower court was contradictory and therefore could not found a conviction. He particularly referred to the evidence of PW1 and PW2 and pointed out what he perceived to be contradictions regarding the time when the incident occurred; whether PW1 was specific in her report of the incident to their mother; and whether the complainant was taken to the hospital for examination on the same date of the incident. [7]The appellant further submitted that although the complainant testified that she was 11 years old, the Charge Sheet gave her age as 10 years. He therefore urged the Court to find that the complainant was not a reliable witness. He relied on Daniel Mwasia v Republic Nairobi HCCRA No. 458 of 1985, Coles v Coles [1886] LR IP&D 70, 71 and Alowo v Republic [1972] EA among others to support his arguments. [8]It was further the submission of the appellant that his fair trial rights as enshrined under Article 50(2)(b), (g) and (h) of the Constitution were violated, in that he was not informed of his rights as an accused person before his plea was taken. He likewise complained that there was no indication in the record of the lower court whether or not Section 211 of the Criminal Procedure Code was complied with. The appellant relied on Ephantus Kamau & another v Republic [2014] eKLR and Njuguna v Republic [2007] eKLR, among other authorities, to support his argument that his right to fair trial was violated in more ways than one. [9]The appellant also impugned the life sentence imposed on him. He stated that he was only 19 years old at the time of his conviction and had in effect been condemned to imprisonment for the remainder of his life on earth. He therefore urged the Court to find that the sentence was harsh and is for setting aside. Accordingly, the appellant prayed that his appeal be allowed and the orders prayed for by him therein be granted. [10]In their written submissions dated 7th January 2026, the respondent urged the Court to find that all elements of incest were proved beyond reasonable doubt. The respondent relied on the testimony of the complainant who told the lower court that the appellant is her brother and that he defiled her on the 11th December 2024 as charged. The respondent also relied on the evidence of PW2 whose testimony was that both the complainant and the appellant are her children. She received the complaint about the defilement of PW1 by the appellant and took her to hospital immediately for examination and treatment. On the basis of the evidence of the two witnesses as corroborated by the medical evidence adduced by PW5, the respondent urged for the dismissal of the appeal contenting that the elements of the offence of incest were duly proved to the requisite standard. The respondent also submitted that the sentence imposed by the lower court was lawful. [11]I have given careful consideration to the appeal and taken into account the written submissions filed herein by the appellant and learned counsel for the State. I am mindful that, in a first appeal such as this, the Court is under obligation to evaluate for itself the evidence adduced before the lower court and come to its own conclusions thereon. In Okeno v Republic [1972] EA 32 the Court of Appeal for East Africa held that:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination ... and to the appellate court's own decision on the whole evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions...It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses..."(see also Reuben Ombura Muma & Another vs. Republic [2018] eKLR) [13]I have consequently perused and considered the evidence presented before the lower court. The respondent called five witnesses. The complainant testified as PW1. She stated that she was at home on the 11th December 2024 and was busy with household chores when her brother, the appellant came home, found her alone and started touching her buttocks. In spite of her protestations, the appellant forcefully removed her pant and defiled her. She immediately informed their mother upon her return. She was taken to hospital for examination and treatment after which the matter was referred to the Police. [14]PW2 testified that she is the mother to the appellant and the complainant. Her evidence was that she had gone to Rodi at about 2.00 p.m. She returned home at about 5.30 p.m. and noted that the complainant was dull-looking and withdrawn. She got to draw her out and learnt from her that she had been defiled by the appellant. She took the complainant to the hospital and was advised to report the incident to the Police. She therefore escorted the complainant to the nearest police station and reported the incident. She availed the Certificate of Birth for the complainant before the lower court. She also identified the P3 Form issued to the complainant at the police station. [15]PW3, a police officer then attached to Imbo Police Patrol Base, confirmed that on 13th December 2024 at about 1600 Hours, he was notified by the Officer in Charge that the appellant had been seen at Rodi. He proceeded there and arrested him in connection with a complaint of incest that had been reported at their station. [16]PC Alice Ochieng (PW4) was the investigating officer in the matter. She confirmed that a report of incest was made at Imbo Police Patrol Base on the 12th December 2024 by PW2 in the company of the minor. She stated that after the report was booked, she issued the minor with a P3 Form and escorted them to Marindi Sub County Hospital for examination and treatment. She produced the Certificate of Birth she received from PW2 as an exhibit before the lower court. [17]The last prosecution witness was Tobias Ochieng Oketch, a Clinical Officer attached to Marindi Sub County Hospital. He testified that the minor herein was presented at their facility on 12th December 2024 following allegations of defilement by a person known to her. He examined and treated her. He later filled the P3 Form. He noted that her genitalia had numerous lacerations extending to the labia minora; and that there were remnants of blood at the hymen. PW5 further stated that the minor’s cervix was swollen though the opening was closed. He also noted that the hymen was torn but not recently. He therefore concluded that the minor had been defiled. [18]In his defence, the appellant testified on the 23rd March 2025. He made reference to the events of 13th December 2024 when he was arrested. He stated that he was looking for employment at the time; and that he received a telephone call requiring him to go to Rodi. While at Rodi attending a security meeting, he was arrested by police officers without being told the reason for his arrest. [19]I have given due consideration to the evidence that was presented before the lower court in the light of the appellant’s Grounds of Appeal. Broadly stated, the issue for determination herein is whether the appeal has merit, in terms of both conviction and sentence. In particular, the Court must ascertain whether:(a)All the elements of the offence of incest with a minor were proved;(b)Whether the appellant’s fair trial rights under Article 50 were violated;(c)Whether the sentence imposed on him by the lower court was warranted. A. On whether the elements of the Charge of Incest were proved to the requisite standard: [20]The substantive charge against the appellant was laid under Section 20(1) of the Sexual Offences Act, which stipulates that: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 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.” [21]The offence entails 4 different elements, namely, the age of the victim; penetration; the identity of the offender and lastly, the relationship between the offender and the victim. That proof of age of a victim of defilement is imperative cannot be overemphasized. The Court of Appeal restated as much in Kaingu Kasomo v Republic Criminal Appeal No. 504 of 2010 thus:“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”. [22]At to what amounts to credible evidence, Rule 4 of the Sexual Offences Rules of Court Rules provides that:“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document." [23]It is also trite that, in addition to the documents set out in Rule 4 above, the age of a minor for purposes of the Sexual Offences Act can also be proved by the oral evidence of the minor’s mother, by way of age assessment, as well as by observation and common sense. Hence, in P M M v Republic [2018] eKLR, it was held thus:“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…” [24]The complainant testified before the lower court on 27th January 2025 and gave her age at the time as 11 years. She further stated that she was then in Grade 5 at [Particulars Withheld] Primary School. Her Certificate of Birth was also exhibited before the lower court. It was duly identified by the minor’s mother, PW2, and produced by the investigating officer. It was marked as the Prosecution’s Exhibit 4. It gives the complainant’s date of birth as 26th January 2014; and therefore it was proved as a matter of fact that the complainant was 10 years old at the time. She was yet to attain the age of 11 years. [25]The Court of Appeal explained in Hadson Ali Mwachongo v Republic [2016] eKLR that:Section 2 of the Interpretation and General Provisions Act defines "year" to mean a year reckoned according to the British Calendar. Under the British Calendar Act, 1751, a year means a period of 365 or 366 days. Thus a person who is, for example, 10 years and 6 months is deemed to be 10 years old and not 11 years old. That approach entails not taking into account the period above the prescribed age so long as it does not amount to a year." [26]Moreover, for purposes of the offence of incest, it suffices that the minor’s age be under 18 years. In the premises, it is my finding that credible evidence was presented before the lower court proving beyond reasonable doubt that the complainant herein was under the age of 18 years and therefore a child for the specific purposes of the proviso to Section 20(1) of the Sexual Offences Act. The perceived variance referred to by the appellant between the evidence of the complainant and the age stated in the particulars of the substantive charge is therefore inconsequential. [27]On penetration, although the sole evidence was that of the complainant, her evidence required no corroboration because the proviso to Section 124 is explicit 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. [28]Moreover, the Judgment of the lower court shows that the learned magistrate warned himself accordingly. At page 5 of the Judgment the learned magistrate made specific reference to the proviso aforementioned and satisfied herself that the complainant was truthful. [29]In addition to the evidence of PW1, PW5 examined her the following day and noted that she had lacerations in her genitalia which extended to the labia minora. It is therefore my finding that penetration was proved beyond reasonable doubt. [30]As to the identity of the offender, again the evidence was adduced by the complainant. She inculpated the appellant and explained the circumstances in which the incident occurred. There was no bad blood between the siblings. It is also significant that the complainant reported the matter to their mother as soon as possible and PW2 promptly took action by taking the girl to the hospital for examination and treatment. She similarly had no reason to take action against the appellant had the allegation been false. I therefore find that the evidence presented before the lower court proved beyond reasonable doubt that the minor herein was defiled by her brother, the appellant. [31]In sum, all the ingredients of the offence of incest as levelled against the appellant were proved before the lower court to the requisite standard; and therefore the appellant’s conviction cannot be faulted. B. On whether the appellant’s fair trial rights under Article 50 of the Constitution were violated: [32]The second issue for determination concerns the appellant’s complaint of violation of his fair trial rights as enshrined in Article 50(2)(g) and (h) of the Constitution. He submitted that, given the seriousness of the charges he was facing and the penalty envisaged thereby, he ought to have been informed of and accorded his right to legal representation. Article 50(2)(g) and (h) of the Constitution stipulates that:“Every accused person has the right to a fair trial, which includes the right:...(g)to choose and be represented by, an advocate, and to be informed of this right promptly;(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly; [33]The Supreme Court had occasion to consider the above Article in Republic v Karisa Chengo & 2 Others [2017] eKLR; had the following to say at paragraph [87] of its Judgment:“(87)Article 50(2)(h) of the Constitution provides that “[e]very accused person has the right to a fair trial, which includes the right…to have an advocate assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly.” It does not define what “substantial injustice” means. However, in David Macharia Njoroge v. Republic, (supra), the Court of Appeal held that “substantial injustice” results to “persons accused of capital offences” with “loss of life” as the penalty if they have no counsel during their trials. We do not entirely concur with that holding, as it has the effect of limiting the right to legal representation in criminal trials only to cases where the accused person is charged with a capital offence. The operative words in Article 50 (2) (h) are “if substantial injustice would otherwise result….” While it is therefore undeniable that a person facing a death penalty and who cannot afford legal representation is likely to suffer substantial injustice during his trial; the protection embedded in Article 50 (2) (h) goes beyond capital offence trials. The Court of Appeal indeed appears to have embraced this reasoning in a recent decision in Thomas Alugha Ndegwa v. Republic; C.A No. 2 of 2004, when it allowed an application for legal representation by the appellant who had been convicted of defilement and sentenced to life imprisonment.” [34]Accordingly, there can be no doubt that the appellant had the right, not only to be represented by an advocate before the lower court, but to also be informed promptly of that right. There is no indication in the record of the lower court that the appellant was informed of this right, yet there is no gainsaying that the appellant herein was faced with a fairly serious charge (per the substantive count); a charge that entailed life imprisonment in the proviso thereto; and therefore met the “substantial injustice” test. [35]Nevertheless, as was pointed out by the Supreme Court in Republic v Karisa Chengo & 2 Others (supra), there is a clear distinction between the right to legal representation in general and the right to legal representation at state expense. The Supreme Court made this vital distinction thus:…it is obvious to us that in criminal proceedings legal representation is important. However, a distinction must always be drawn between the right to representation per se and the right to representation at State expense specifically. Inevitably, there will be instances in which legal representation at the expense of the State will not be accorded in criminal proceedings. Consequently, in view of the principles already expounded above, it is clear that with regard to criminal matters, in determining whether substantial injustice will be suffered, a Court ought to consider, in addition to the relevant provisions of the Legal Aid Act, various other factors which include:i.the seriousness of the offence;ii.the severity of the sentence;iii.the ability of the accused person to pay for his own legal representation;iv.whether the accused is a minor;v.the literacy of the accused;vi.the complexity of the charge against the accused; [36]It is also instructive that there is an elaborate framework to operationalize Article 50(2)(h) in the form of the Legal Aid Act, No. 6 of 2016. That framework puts an applicant, in this case the appellant, at the centre of the process; for Section 40 provides that:(1)A person who wishes to receive legal aid, shall apply to the Service in writing.(2)Where a person wishes to apply for legal aid the person shall apply before the final determination of the matter by a court.(3)An application under subsection (1) shall be assessed, with respect to the applicant’s eligibility for legal aid services in accordance with this Act.” [37]Section 42 of the Act further recognizes that, for persons in lawful custody, the application for legal aid need not be made to the Court. It states that:The officer-in-charge of a prison, police station, remand home for children or other place of lawful custody shall—a.ensure that every person held in custody, is informed in language that the person understands, of the availability of legal aid on being admitted to custody and is asked whether he or she desires to seek legal aid;b.maintain a register in which shall be entered the name of every person held there and the response of each such person when asked if he or she desires to seek legal aid; andc.ensure that a legal aid application form is made by a person in their custody wishing to apply for legal aid and shall inform the Service of the application within twenty-four hours of the making of the application. [38]In the absence of an application as indicated herein above, I am far from persuaded that the appellant’s right to legal representation at state expense was infringed. In any event, the Court of Appeal pointed out that breach of Article 50 of the Constriction does not necessarily entail an acquittal. Here is what the Court of Appeal had to say in Simon Ndichu Kahoro v Republic____ [2016] eKLR:“We should not be understood to be setting up a general principle or precedent that every breach of Article 50 of the Constitution, 2010 should automatically result in an acquittal of an accused person. Each case must be considered in the light of its own special circumstances as consequences of breach of fair rights to fair trial depend on all the surrounding circumstances of a case.” [39]The Appellant's Counsel also faulted the lower court for its failure to ensure compliance with Section 211 of the Criminal Procedure Code by not explaining to the Appellant the rights entailed thereby, including the right to call witnesses if any. It is imperative that upon making a finding that an accused person has a case to answer, compliance be had with Section 211 of the Criminal Procedure Code by the trial magistrate; and that such compliance be clearly recorded in the record of proceedings. (see Hawo Ibrahim vs. Republic [2016] eKLR). [40]In this instance, the record shows that, the appellant chose to give sworn evidence and that his choice was put down in the record at page 21 of the Record of Appeal. Although the learned magistrate did not specifically note, as should have been done, that there was compliance with Section 211 of the Criminal Procedure Code, the response of the appellant does show that this was done. Accordingly, no prejudice was occasioned to the appellant in this regard. (see John Waweru Njoka vs. Republic [2001] eKLR). C. On whether the Sentence of life imprisonment was warranted in the circumstances: [41]Lastly, I have given consideration to the sentence meted out on the appellant, bearing in mind the reiteration by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, 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 stated is shown to exist.” [42]It is instructive that, in the proviso to Section 20(1) of the Sexual Offences Act, it is stipulated 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.” [43]The Judiciary Sentencing Guidelines, 2023 at Paragraph 4.5 on Determination of the Sentence provide:4.5.1In determining the appropriate sentence, courts must assess a number of issues starting with the degree of both culpability and harm.4.5.2The assessment of culpability will be based on evidence of the crime provided through testimony where a trial has been conducted, or, where a plea is entered, through the prosecution summary of facts. Aggravating and mitigating features surrounding the offence may be advanced by the prosecution and the accused person (or his/her representative).4.5.3Where an offence is committed by more than one offender a court shall ascertain the culpability of each of the offenders involved and render individual sentences commensurate to their involvement in the offence.4.5.4The assessment of harm may be based on testimony, or the summary of facts presented and also by a victim impact statement where that has been obtained.4.5.5Mitigating factors refers to any fact or circumstance that lessens the severity or culpability of a criminal act and can also include the personal circumstances of the offender.4.5.6Convicted offenders should be expressly provided with the opportunity to present submissions in mitigation.4.5.7A list of aggravating and mitigating circumstances – which is not exhaustive – is contained within the GATS along with those specific to murder, manslaughter, and wildlife cases, in Part V.4.5.8Having heard all relevant submissions and considered any reports advanced by either prosecution or defence, or the probation or children’s officer (where applicable), and any victim impact statement, the court should:i.Decide as to whether a custodial or a non-custodial sentence should be imposed in line with these guidelines.ii.In the case of sexual offences, before the terms of a custodial sentence are determined, the court must have recourse to relevant probation reports as required in sections 39 (2) and (4) of the Sexual Offences Act No.3 of 2006 that contain provisions about post-penal supervision of dangerous sexual offenders. (emphasis added) [44]It is therefore essential that at the sentencing hearing, care be taken by the trial courts to appraise culpability and harm based on the evidence or facts presented, taking into account any aggravating or mitigating circumstances. The Guidelines also require that the offender be allowed to mitigate, and that a consideration be given to all relevant reports before an appropriate sentence can be determined. In sexual offences, the court must also review the Section 39(4) reports before setting the custodial term and/or prescribing post-penal supervision. [45]In this matter, the sentencing hearing was held on the 27th May 2024. The trial court considered a report by the probation officer dated 27th May 2025 and proceeded to impose the sentence of life imprisonment noting that it is the only option provided for in the Sexual Offences Act. The appellant was therefore not given a chance to present his mitigation. [46]It is evident therefore that the trial court refrained from exercising its discretion on sentencing and proceeded on the basis that the proviso to Section 20(1) of the Sexual Offences Act entails a mandatory sentence of life imprisonment. That was an erroneous approach and the Court of Appeal has pronounced itself severally on the matter. For instance, in M K v Republic [2015] KECA 468 (KLR) the Court of Appeal held:…18.The first observation to note is that the phrase “not less than” has not been used in the proviso to Section 20 (1) of the Sexual Offences Act. The inference is that the proviso does not create a minimum sentence. The phraseology and wording in the proviso is that the accused shall be liable to imprisonment for life.19.What does “shall be liable” mean in law? The Court of Appeal for East Africa in the case of Opoya -v- Uganda (1967) EA 752 had an opportunity to clarify and explain the words “shall be liable on conviction to suffer death”. The Court held that in construction of penal laws, the words “shall be liable on conviction to suffer death” provide a maximum sentence only; and the courts have discretion to impose sentences of death or of imprisonment. The Court cited with approval the dicta in James -v- Young 27 Ch. D. at p.655 where North J. said:“But when the words are not ‘shall be forfeited’ but ‘shall be liable to be forfeited’ it seems to me that what was intended was not that there should be an absolute forfeiture, but a liability to forfeiture, which might or might not be enforced”.We consider such to be the correct approach to the construction of the words “shall be liable on conviction to suffer death: especially when contrasted with the words of s.184 which are “shall be sentenced to death”.20.On our part, we contrast the wordings in Section 8 (2) of the Sexual Offences Act with the proviso in Section 20 (1) of the said Act. The contrast will shed light as to whether the sentence in the proviso to Section 20 (1) is minimum and mandatory or otherwise. Section 8 (2) provides that a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. The proviso in Section 20 (1) provides that the accused shall be liable to imprisonment for life.21.Guided by the decision in Opoya -v- Uganda (1967) EA 752 and the persuasive dicta of North J. in James -v- Young 27 Ch. D. at p.655; we are satisfied that the sentence stipulated in the proviso to Section 20 (1) of the Sexual Offences Act is not a minimum mandatory sentence of life imprisonment. The proviso simply states that the trial court has discretion to mete out a maximum term of life imprisonment. Read in conjunction with the general provision in Section 20 (1) we hereby state that the correct interpretation of the proviso in Section 20 (1) is that a person convicted of incest when the female victim is under the age of eighteen years is liable to a term of imprisonment between 10 years and life imprisonment…” (emphasis supplied) [47]It is therefore my considered finding that the sentence imposed on the appellant was premised on the wrong principle and therefore ought to be set aside. [48]In the result, while I find no merit in the appeal against conviction, the appeal on sentence is hereby allowed. The sentence of life imprisonment imposed on the appellant is hereby set aside. Having considered the proper interpretation of the proviso to Section 20(1) of the Sexual Offences Act, the complainant’s age at the time of the offence, the relationship between the parties, the seriousness of the offence, and the applicable sentencing principles, the appellant is hereby sentenced to imprisonment for 30 years to be reckoned from the date of his arrest on 13th December 2024.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF MAY 2026……………..……………………….HON. OLGA SEWEJUDGE