https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12142

Wandenda v Republic (Criminal Appeal E009 of 2024) [2026] KEHC 12142 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KEHC 12142 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Appeal E009 of 2024 JM Omido, J July 31, 2026 Between Joseph Wandenda Appellant and Republic Respondent (Being an appeal from the conviction and sentence of Hon. J.N Wambilyanga, Senior Principal Magistrate delivered on 1st November, 2022 in Kisumu Sexual Offence Case No. 17 of 2020 Republic v Joseph Wandenda) Judgment A. The Charges. 1.The Appellant Joseph Wandenda was charged before the trial court 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. As is instructive from the charge sheet, the particulars of the offence were that on the 17th April, 2020 at about 1100hrs at [Particulars withheld] Estate in Kisumu Central Subcounty within Kisumu County, the Appellant intentionally caused his penis to penetrate the vagina of NA (name withheld, hereinafter referred to as “the survivor”), a child aged 17 years. 2.The Appellant denied the charge, which then called for a full trial. B. The Grounds of Appeal. 3.The prosecution case was founded on the evidence of 6 witnesses, while the defence comprised of the Appellant’s unsworn statement. Following the conclusion of the trial, the Appellant was convicted as charged and subsequently sentenced to serve 15 years imprisonment. 4.Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the amended petition of appeal dated 15th August, 2024 in which he raised the following grounds:a.That , the learned trial Magistrate erred in law and facts by convicting the Appellant without considering that the ingredient of defilement (penetration) was not proved to the required standard.b.That , there was disparity in assessing the age of the victim at 17 years against that of the Appellant 18 years leading to an erroneous judgement.c.That , the learned trial Magistrate erred in law and facts in convicting the Appellant without considering the conduct of the complainant.d.That , the learned trial Magistrate erred in law and facts by failing to consider/observe that the intended effect of the sentence can be achieved with a less severe punishment.e.That , the learned trial Magistrate erred in law and facts by failing to evaluate that the prosecution had failed to summon their essential witness to testify. 5.On the strength of these grounds, the Appellant urges this court to allow the appeal, quash his conviction and acquit him and set aside the sentence of imprisonment of 15 years. C. The Duty of this Court. 6.This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570 and Peter v Sunday Post [1958] EA 424.) 7.In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the conviction and sentence. D. The Prosecution Case. 8.The first prosecution witness before the trial court (PW1) was NA (name withheld), who testified and stated that she was at the time of testifying an 18-year-old student at XY Girls High School (particulars withheld). 9.She stated that on 17th April 2020, when she was aged 17 years, she went to visit the Appellant, Joseph Wandenda, who was her neighbour at [Particulars withheld]. She testified that the Appellant welcomed her into his house, where they conversed and shared a meal which had been sent for by the Appellant. 10.The survivor testified that while she was at the Appellant’s house, the Appellant touched her hands and thighs and then took her to his bed where he kissed her and then engaged in sexual intercourse with her, by inserting his penis into her vagina. She stated that the Appellant used a condom. 11.PW1 further testified that she had informed the Appellant that she was 17 years old, having been born on 11th November, 2002 and that she was still in school. She stated that she had not previously engaged in sexual intercourse and was at the time a virgin. 12.The survivor further testified that another man later arrived at the Appellant’s house and found them together. She stated that the man reported the survivor’s presence in the Appellant’s house to the area chief, after which her mother was informed. She was subsequently taken for medical examination and received medication for prevention of HIV infection. She identified the Appellant in court as the perpetrator. 13.On cross-examination, the survivor maintained that the alleged incident occurred on one occasion. On re-examination, she stated that two condoms were used during the alleged incident and that she saw blood on them. 14.The second prosecution witness before the trial court (PW2) was AAO (name withheld), who testified and stated that she was the mother of the survivor and resided at Obunga, Kasarani. She stated that on 17th April, 2020, while she was at work, she received a call from police officers at Obunga Police Station asking whether she knew the survivor. She confirmed that she was the survivor’s mother and was requested to proceed to the police station. 15.PW2 testified that upon arrival at the police station, she was informed that the Appellant had been found with the sleeping with the survivor. She stated that they thereafter proceeded to Jaramogi Oginga Odinga Teaching and Referral Hospital (JOOTRH), where the survivor was examined and treated. She testified that the survivor’s clothes had blood stains. She further stated that after the medical examination, they returned to the police station and later went home. 16.AAO testified that the survivor was aged 17 years old at the time of the alleged incident. She produced the survivor’s birth certificate as evidence of age (PExh1), which indicated that the survivor was born on 11th November, 2002. She further testified that the survivor was taken for medical examination and identified the relevant medical documents that were presented before the trial court, including her post rape care (PRC) form and medical examination report (P3 form). 17.PW2 further testified that she spoke to the survivor, who informed her that a person known as Joseph had engaged in sexual intercourse with her. She stated that she knew the Appellant as a neighbour and identified him as the person before the court. 18.On cross-examination, the witness stated that she knew the Appellant as a neighbour but did not know that he would engage in sexual intercourse with her child. 19.The prosecution called Dennis Ouma Okong’o, a human rights defender, as PW3, who told the trial court that he worked with Mission of Love Support, a community-based organisation involved in social justice matters. He testified that on 17th April 2020, he was informed by members of the public that there was a school-going girl in a house with a man and proceeded to the said house. 20.PW3 testified that upon arrival at the house, he found the survivor and the Appellant in the latter’s house. The Appellant had no clothes below his waist. The witness stated that he observed the Appellant and the survivor and inquired from them what was happening, but they did not provide an explanation. The two were breathing heavily. 21.PW3 further testified that he saw about 3 used condoms in the bedding and immediately informed the area chief, who sent assistance. He stated that the Appellant and the survivor were thereafter taken to Obunga Police Post, where the survivor was referred for medical examination. 22.PW3 identified the Appellant before the trial court as the person he found with the survivor. 23.On cross-examination, PW3 stated that although he did not have his employment identification card in court, he was willing to avail it. He further stated that the used condoms that were found in the Appellant’s house were taken by the police, who put them in a brown envelope. 24.The prosecution called Dr. Ombok Lucy as PW4. The doctor testified and told the trial court that she worked at JOOTRH and outlined her professional qualifications. 25.In her testimony, PW4 stated that she treated and examined the survivor on 21st April, 2020 and thereafter completed and signed her P3 form of even date. 26.The witness told the trial court that the survivor, who was aged 17 years, presented a history of having engaged in sexual intercourse with her boyfriend. 27.PW4 explained that at the time of examination, the survivor had changed clothes. She had a calm demeanour. She had received prior treatment whereby emergency contraceptives and post-exposure prophylaxis administered. 28.PW4 stated that on examining the survivor’s genitalia, she noted that her hymen was broken and that there was no presence of discharge. Her external genitalia was normal. She recorded her observations in the P3 form, which she produced as PExh3. 29.The Appellant did not cross examine the witness. 30.PW5 was Keziah Tanui, a clinician working at JOOTRH. In her testimony, she told the trial court that she examined the survivor on 17th April, 2020 and completed her PRC form. 31.The witness stated that the survivor, who was at the time 17 years old, presented a history of having engaged in sexual intercourse earlier on the same day with her boyfriend, whose name she said was Joseph. The survivor told the witness that it was her first sexual engagement and that her last day of menstruation was 9th April, 2020. She had not taken a bath at the time of examination and her pant, which was soiled with dirt, was presented to the clinician. 32.PW5 stated that upon examining the survivor’s genitalia, she noted tears to her labia minora and a broken hymen. Laboratory investigations and high vaginal swab revealed the presence of epithelial cells. HIV, hepatitis B and pregnancy tests all turned negative. 33.The witness produced the PRC form as PExh2. 34.The Appellant did not cross examine PW5. 35.The last prosecution witness was Police Constable Dennis Murimi of Obunga Police Station, who testified and told the trial court that he was the investigating officer in the matter. 36.The witness stated that on 17th April, 2020, he was informed by his superior at the station that there was a defilement case that required investigation. He testified that upon reviewing the report, he found that the Appellant had already been taken to the police station by the area chief and village elders and was in custody. 37.PW6 testified that, together with the area chief, he visited the Appellant’s house in the presence of the Appellant. He stated that thereafter, he took the Appellant and the survivor to hospital for medical attention. He further testified that he recorded statements from the Appellant and the witnesses and, upon completion of investigations, formed the view that there was sufficient evidence to warrant the institution of the case before the trial court. 38.The witness identified the Appellant before the trial court as the perpetrator. 39.On cross-examination, PW6 stated that he took the Appellant to hospital and that he did not know the nature of the relationship between the Appellant and the survivor. He further stated that he called witnesses who testified that they had found the Appellant and the survivor together, in his house. E. Ruling on Prima Facie Case. 40.In the trial court’s considered ruling rendered on26th July, 2022, the trial court found that the prosecution had established a prima facie case against the Appellant and he was placed on his defence. F. The Defence Case. 42.The Appellant Joseph Wandenda (DW1), told the trial court in his unsworn testimony that he was a resident of Obunga Estate in Kisumu and was, before his arrest, a student at Lake Basin Bible College. He stated that he understood the charges facing him and the evidence that had been presented before the court. 43.The Appellant testified that on 17th April, 2020, he woke up and went to school, and upon returning home at about 4.00 pm, he found his in-law, Dennis Omondi, at his door accompanied by a group of people and a girl. He stated that they informed him that he had defiled the said girl. 44.The Appellant further testified that he was taken to the police station, where he remained for about one week, before being taken to court and charged. He denied the allegations against him and stated that the case had been fabricated. 45.The Appellant did not call any witness and closed the defence case at that stage. G. The Trial Court’s Findings. 46.In her judgement rendered on 1st November, 2022, the learned trial Magistrate set out the issues for determination being: whether the survivor was defiled; if so, whether it is the Appellant who defiled her; whether the Appellant had the knowledge that the survivor was a minor; and ultimately, whether the charge of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act had been proved against the Appellant beyond reasonable doubt. 47.Upon considering the record and the material before her, the learned trial Magistrate reached affirmative findings on all the issues that she set out for determination, with the result that she then proceeded to convict the Appellant on the charge that he faced in line with Section 215 of the Criminal Procedure Code. She subsequently sentenced him to serve 15 years imprisonment. 48.The instant appeal, which proceeded by way of written submissions, seeks to upset the conviction and sentence of the trial court. Notably, the Respondent did not file any submissions. H. The Appellant’s Submissions. 49.In his submissions in support of the appeal, the Appellant contends that the trial court erred in law and fact by convicting him when the prosecution had failed to prove the element of penetration beyond reasonable doubt. He submits that, being an offence carrying a severe penalty, the charge against him required strict proof. 50.The Appellant argues that although PW1 testified on the alleged act, the medical evidence did not conclusively establish penetration. He refers to the evidence of PW4, Dr. Ombok Lucy, who testified that the survivor had normal external findings and that the medical examination did not determine the nature, age, or cause of the injuries noted. The Appellant submits that the medical evidence raised doubts as to whether the alleged act occurred as claimed. 51.The Appellant further relies on the decision in Arthur Mshila Manga v Republic [2016] eKLR to argue that medical evidence must be carefully evaluated in sexual offence cases. He submits that in that case, the Court of Appeal held that where medical evidence does not establish defilement, the court must examine the testimony of the survivor with caution and, before relying solely on such testimony, must be satisfied that the survivor was truthful and record reasons for that belief as required under Section 124 of the Evidence Act. 52.The Appellant contends that in the present case the trial court did not record reasons explaining why it believed the survivor’s testimony, and therefore the conviction ought not to stand. 53.The Appellant further contends that the trial court erred in failing to properly consider the ages of the survivor and the Appellant. He submits that the survivor was aged 17 years and five months at the time of the alleged offence, while he was also a young person aged 18 years. He argues that the trial court ought to have considered the disparity in ages and the circumstances under which the offence was alleged to have occurred. 54.He relies on the decision of the High Court in Wachira & 12 others v Republic & 2 others [2022] KEHC 12795 (KLR) and the Court of Appeal decision in Evans Wanjala Siibi v Republic [2019] eKLR, where the courts considered the consequences of applying the law on defilement to youthful persons and raised concerns regarding fairness and proportionality in circumstances involving adolescents. 55.The Appellant further submits that the trial court failed to consider the appropriate sentencing framework based on the survivor’s age. He argues that since the survivor was aged 17 years and five months, the sentence imposed ought to have been less severe. He relies on the Court of Appeal decision in Hudson Ali Mwachongo v Republic [2016] eKLR, where the court considered the difficulty of determining the appropriate sentence where a victim’s age falls close to the statutory thresholds under the Sexual Offences Act. 56.The Appellant submits that the benefit of doubt should operate in favour of an accused person where the precise age category affects the applicable sentence. He therefore argues that the sentence of 15 years imprisonment imposed by the trial court was excessive and ought to be reduced. 57.The Appellant also contends that the trial court failed to properly consider the conduct and circumstances of the survivor before reaching its decision. He submits that the survivor went to his house voluntarily and that the evidence did not demonstrate that he had forced her to go there. 58.He relies on the decision in Martin Charo v Republic [2016] eKLR, where the court observed that in determining a charge of defilement, the circumstances surrounding the complainant’s conduct may be relevant to the evaluation of the evidence. 59.The Appellant argues that although the law does not recognize consent by a person below 18 years, the surrounding circumstances were material in determining whether the prosecution proved the offence beyond reasonable doubt. 60.The Appellant further relies on the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402, where he submits that the court recognized that it may be unrealistic to assume that teenagers do not engage in sexual activity and that circumstances involving adolescents require careful consideration. 61.He argues that the survivor’s conduct in visiting his house and the circumstances surrounding their interaction ought to have been taken into account by the trial court. 62.The Appellant further challenges the sentence imposed by the trial court, submitting that the court failed to consider whether the objectives of punishment could be achieved through a less severe sentence. 63.He relies on Section 26(2) of the Penal Code, which permits the court to impose a lesser term of imprisonment where appropriate, and Article 50(2)(p) of the Constitution, which guarantees an accused person the right to benefit from the least severe prescribed punishment. He urges the appellate court to exercise its discretion and reduce the sentence imposed. 64.The Appellant lastly contends that the prosecution failed to call essential witnesses whose evidence would have assisted the court in determining the circumstances under which he was found with the survivor. 65.He submits that the person who allegedly found him and the survivor together, as well as the area chief who was contacted, were not called as witnesses. 66.He relies on Bukenya & Another v Republic [1972] EA 549, where the court held that failure by the prosecution to call material witnesses may, in appropriate circumstances, lead to an inference that their evidence would have been adverse to the prosecution case. 67.He further relies on Zachariah Waswa v Republic [2023] eKLR and CMN v Republic [2012] eKLR, where the courts considered the effect of failure to call witnesses who were alleged to have been present during the material events. 68.The Appellant consequently urged the appellate court to allow the appeal, quash the conviction, set aside the sentence, and either acquit him or substitute the sentence with a lesser one. I. Issues For Determination. 69.Having considered the record of appeal, the grounds of appeal and the submissions by the Appellant, the following issues arise for determination:a.Whether the prosecution proved beyond reasonable doubt the ingredients of the offence of defilement, particularly the element of penetration.b.Whether the prosecution proved the age of the survivor and whether the circumstances relating to the ages of the survivor and the Appellant affected the conviction.c.Whether the conduct of the survivor and the surrounding circumstances raised reasonable doubt as to the Appellant’s culpability.d.Whether the failure by the prosecution to call additional witnesses was fatal to its case.e.Whether the sentence of 15 years imprisonment imposed by the trial court was excessive or unlawful. J. Analysis and Findings. 70.I will proceed to address and determine the identified issues sequentially. As I have stated before, this being a first appeal, I will proceed, as I am required, to independently re-evaluate the evidence before the trial court and arrive at my own conclusion, while bearing in mind that I neither saw nor heard the witnesses testify. 71.The first issue for me to address is whether the prosecution proved the ingredients of defilement. 72.The offence of defilement is created under Section 8 of the Sexual Offences Act. The prosecution is required to prove three essential ingredients, namely: the age of the complainant, penetration and that the accused person was the perpetrator of the act of penetration. 73.On the first ingredient of age, the same was not in dispute. The survivor testified that she was aged 17 years at the time of the alleged offence and stated that she was born on 11th November, 2002. This evidence was corroborated by PW2, her mother, who produced the survivor’s birth certificate as PExh.1. The birth certificate indicated that the survivor was born on 11th November, 2002. 74.The alleged offence occurred on 17th April, 2020. The survivor was therefore aged 17 years and about five months. The trial court therefore correctly found that the survivor was a child within the meaning of Section 2 of the Sexual Offences Act and that the prosecution had proved her age beyond reasonable doubt. 75.The Appellant’s argument that the survivor was approaching the age of 18 years does not alter the legal position. The law does not create a transitional category between childhood and adulthood for purposes of Section 8 of the Sexual Offences Act. A person below the age of 18 years, even if by one day, remains a child for purposes of the Act. The fact that the survivor was aged 17 years and five months did not, therefore, remove the protection accorded to her under the law. 76.On the ingredient of proof of penetration, the Appellant’s principal challenge is that the same was not proved beyond reasonable doubt. He argues that the medical evidence was inconclusive and relies on Arthur Mshila Manga v Republic [2016] eKLR, where the Court of Appeal emphasized the need for careful evaluation of medical evidence in sexual offence cases. 77.In determining this issue, it is important to appreciate that penetration is defined under Section 2 of the Sexual Offences Act and may be proved through direct evidence, medical evidence or a combination of both. Medical evidence is important but is not the only means through which penetration may be established. 78.In the present case, the evidence of penetration was primarily given by PW1, the survivor. She testified that the Appellant engaged in sexual intercourse with her by inserting his penis into her vagina. Her evidence was direct evidence of the occurrence of the act. The question for the court was not whether her testimony required corroboration, but whether it was credible and whether the prosecution proved the offence beyond reasonable doubt. 79.Section 124 of the Evidence Act permits a conviction in a sexual offence case based on the sole evidence of the victim, provided that the court records reasons for being satisfied that the victim is telling the truth. 80.In the present case, the survivor’s testimony was not standing in isolation. It was supported by surrounding circumstances. PW3 testified that he went to the Appellant’s house after receiving information from members of the public and found the Appellant and the survivor together. He further testified that he observed used condoms in the bedding. 81.PW6, the investigating officer, confirmed that the Appellant had been taken to the police station and that investigations were commenced after the report was made. 82.The medical evidence also provided support for the survivor’s account. PW5, the clinician who examined the survivor on the same day, testified that upon examining the survivor’s genitalia, she noted tears to her labia minora and a broken hymen. Laboratory investigations and high vaginal swab revealed the presence of epithelial cells. She recorded those medical findings in the PRC form, which she produced as PExh2. 83.PW4, Dr. Ombok, subsequently completed the P3 form and produced it in court. The evidence of the two medical witnesses, considered together with the testimony of PW1, was consistent with the occurrence of sexual activity. 84.The Appellant argued that the medical evidence did not establish when the injuries occurred or whether the findings were necessarily attributable to the alleged incident. However, the prosecution was not required to prove the precise timing or mechanism of every medical finding. The question before the trial court was whether the evidence as a whole proved penetration beyond reasonable doubt. 85.The court further notes that the medical examinations relied upon by the prosecution were conducted at different times. PW5 examined the survivor on 17th April, 2020, being the date of the alleged incident, and recorded the findings contained in the PRC form. PW4, on the other hand, examined the survivor on 21st April, 2020, four days later, when she completed the P3 form. The lapse of time between the two examinations provides a reasonable explanation as to why PW4 did not observe the same fresh injuries noted by PW5. 86.The absence of similar findings during the subsequent examination cannot, in the circumstances of this case, be interpreted as negating the earlier medical observations. Rather, the two medical reports must be considered together, taking into account the different dates of examination and the purpose for which each medical document was prepared. 87.The decision in Arthur Mshila Manga v Republic is distinguishable. In that case, the Court of Appeal found that the medical evidence did not support the allegation of defilement and that the conviction rested solely on evidence that had not been adequately evaluated. In the present case, the evidence of the survivor was supported by the evidence of PW3, PW4 and PW5, as well as the surrounding circumstances in which the Appellant and the survivor were found. 88.The Appellant further contends that the trial court failed to record reasons for believing the survivor as required under Section 124 of the Evidence Act. Having considered the judgement, this court notes that the learned trial Magistrate analyzed the survivor’s testimony, considered its consistency and found it credible. The court was entitled to rely on that evidence after evaluating the circumstances under which it was given and considering the evidence of the other witnesses. 89.This court therefore finds that the prosecution proved penetration beyond reasonable doubt. 90.The third ingredient is whether the Appellant was the perpetrator. 91.The evidence identifying the Appellant was equally clear. PW1 testified that the person involved was the Appellant, whom she knew as her neighbour. This was therefore a case of recognition rather than identification of a stranger. 92.PW3 also found the Appellant and the survivor together in the Appellant’s house. PW2 testified that the survivor informed her that the person involved was Joseph, whom she knew as a neighbour. The investigating officer confirmed that the Appellant was the person who had been taken to the police station in connection with the allegations. 93.The Appellant’s defence was that the case had been fabricated against him. However, his unsworn statement did not provide an explanation as to why PW1, PW2, PW3 and PW6 would falsely implicate him. The trial court was entitled to reject that defence after considering it against the totality of the prosecution evidence. 94.This court therefore finds that the prosecution proved all the ingredients of the offence of defilement beyond reasonable doubt. 95.The second issue for me to determine is whether the conduct of the survivor and the circumstances of the case created doubt that should benefit the Appellant. 96.The Appellant argues that the survivor voluntarily went to his house and that the trial court ought to have considered her conduct in determining whether the offence was proved. He relies on Martin Charo v Republic [2016] eKLR and Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402. 97.The court appreciates the Appellant’s submission that the surrounding circumstances of a case are relevant in evaluating evidence. However, the law in Kenya is clear that a child below the age of 18 years cannot legally consent to sexual activity. 98.The issue in a charge of defilement is not whether the child appeared willing or voluntarily accompanied the accused person, but whether the accused engaged in the prohibited sexual conduct with a child. 99.The fact that PW1 went to the Appellant’s house did not amount to consent in law, as a child has no capacity to consent, nor did it relieve the Appellant of the obligation to ensure that he did not engage in sexual activity with a child. 100.The decision in Gillick does not assist the Appellant. That decision arose in a different legal context and concerned the capacity of minors to consent to medical advice and treatment. It does not alter the statutory protection accorded to children under the Sexual Offences Act. 101.The circumstances relied upon by the Appellant were therefore properly considered by the trial court but did not create reasonable doubt regarding the charge. 102.The third issue for determination is whether failure to call other witnesses was fatal to the prosecution case. 103.The Appellant argues that the prosecution failed to call the person who allegedly found him and the survivor together and the area chief who was contacted. He relies on Bukenya & Another v Republic [1972] EA 549, Zachariah Waswa v Republic [2023] eKLR and CMN v Republic [2012] eKLR. 104.It is a settled principle that the prosecution is not required to call a particular number of witnesses. The question is whether the evidence presented was sufficient to prove the charge beyond reasonable doubt. Section 143 of the Evidence Act provides that no particular number of witnesses is required for proof of any fact. 105.The principle in Bukenya applies where the evidence called by the prosecution is insufficient and where a missing witness would have been expected to provide material evidence necessary for a just determination of the case. It does not mean that every person who may have had some connection with the events must necessarily be called. 106.In this case, the material evidence was provided by PW1, PW2, PW3, PW4, PW5 and PW6. PW3 was the person who went to the house and observed the circumstances there. His evidence was before the trial court and was tested through cross-examination. 107.The failure to call the additional witnesses did not therefore create a gap in the prosecution case or justify an inference that their evidence would have been adverse to the prosecution. 108.The fourth issue for determination is whether the sentence was excessive or unlawful. 109.The Appellant challenges the sentence of 15 years imprisonment and submits that the trial court ought to have imposed a lesser sentence. He relies on Section 26(2) of the Penal Code, Article 50(2)(p) of the Constitution and the decision in Wachira & 12 others v Republic & 2 others [2022] KEHC 12795 (KLR). 110.Section 8(4) of the Sexual Offences Act provides that where the child is aged between 16 and 18 years, the offender is liable upon conviction to imprisonment for a term of not less than 15 years. The sentence imposed by the trial court was therefore the statutory minimum sentence applicable to the offence for which the Appellant was convicted. 111.The Appellant urged this court to apply the principles arising from Francis Karioko Muruatetu & another v Republic & 5 others [2017] eKLR (Muruatetu I) to reach the finding that the court has discretion to impose a sentence that is less that 15 years imprisonment. However, the Supreme Court in Francis Karioko Muruatetu & another v Republic & 5 others [2021] eKLR (Muruatetu II) issued directions clarifying that the decision was limited to the mandatory nature of the death sentence under Section 204 of the Penal Code and that Muruatetu I did not declare all mandatory minimum sentences unconstitutional, nor did it authorize courts to disregard minimum sentences provided under other statutes. 112.Accordingly, while sentencing courts retain discretion and must consider mitigation, proportionality and the circumstances of each case, such discretion must be exercised within the framework established by Parliament. 113.The trial court considered the circumstances of the case and imposed the minimum sentence prescribed under Section 8(4) of the Sexual Offences Act. There is therefore no basis upon which this court can interfere with the sentence. K. Disposition and Orders. 114.Having independently re-evaluated the evidence on record, this court finds that the prosecution proved beyond reasonable doubt that the survivor was aged below 18 years, that penetration occurred and that the Appellant was the person who committed the offence. 115.The grounds of appeal against conviction and sentence are therefore without merit. 116.Consequently, the appeal against conviction and sentence is hereby dismissed. The conviction is upheld and the sentence of 15 years imprisonment imposed by the trial court is affirmed. 117.This file is hereby closed. DELIVERED (VIRTUALLY), SIGNED & DATED THIS 31ST DAY OF JULY, 2026.JOE M. OMIDOJUDGEAppellant: Present, virtually.For Respondent: Ms. Muema.Court Assistant: Mr. Ngoge & Mr. Juma.