[2022] KEHC 10503 (KLR)

Yegon v Republic (Criminal Appeal 4 of 2020) [2022] KEHC 10503 (KLR) (15 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10503 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Appeal 4 of 2020

RL Korir, J

June 15, 2022

Between

Ronald Cheruiyot Yegon

Appellant

and

Republic

Respondent

(From Original Conviction and Sentence of Hon. L. Kiniale in Criminal Case S.O. Number. 32 of 2018 by the Principal Magistrate’s Court at Bomet)

Judgment

1. The Appellant, Ronald Cheruiyot Yegon, was charged and convicted of the offence of Defilement contrary to section 8(1) as read with Section 8(4) of the Sexual Offences Act, 2006. The particulars of the offence were that on 28th day of July 2018 in Kipsarwet location within Bomet County, intentionally and unlawfully caused his penis to penetrate the vagina of MCL , a child aged 17 years old.

2. An alternative count of Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act was also brought against him. Particulars are that on 28th day of July 2018 in Kipsarwet location within Bomet County, intentionally and unlawfully caused his penis to come into contact with the vagina, breasts and buttocks of MCL, a child aged 17 years old.

3. A second Count of Assault causing actual bodily harm contrary to section 251 of the Penal Code was also brought against him. The particulars according to the charge sheet were that on 29th day of July 2018 in Kipsarwet location within Bomet County, assaulted MCL thereby occassioning her actual bodily harm.

4. The Appellant pleaded not guilty in which the prosecution called five (5) witnesses including the victim herself. At the close of the prosecution’s case, the court found that the Appellant had a case to answer and put him on his defense. Section 211 of the Criminal Procedure Code was read and explained to the Appellant in the language he understood. He opted to give unsworn statement and called 3 witnesses.

5. By Judgment delivered on 10th September 2020, the Appellant was convicted on the first and the second charges. Upon consideration of a pre-sentence report and a victim impact statement, he was sentenced to ten (10) years imprisonment for the first charge and for 1 year for the second count. The sentences were to run concurrrently.

6. Being dissatisfied with the conviction and the sentence, the Appellant lodged the present Appeal on 29th September 2020. He raised 12 grounds which in summary challenged the age of the complainant, the medical evidence and the State’s failure to call certain witnesses.

7. A year later, the Appellant later filed a homemade amended Memorandum of Appeal dated 28th September 2021 and listed the grounds reproduced verbation as follows:a.That the learned trial magistrate abdicated its duty to carefully consider the evidence before it, evaluate itself, assess the evidence of the complainant who was not a straight forward person and devious of complain (sic) and draw its own conclusion to convict I the appellant.b.That the learned trial magistrate erred in law and in fact to note (sic) the whole trial was irregular because it violated the judgment and constitutional right given in Article 50(2) (b) and (c).c.That the learned trial magistrate erred in law and in fact by failing to detect the contradiction and failed to establish that there was no arresting officer.d.That the learned trial magistrate erred in law and in fact by not observing the age of the child (PW1) was not proved as required by law hence the prosecution did not prove the ingredients of the sexual offence of defilement.e.That the learned trial magistrate erred in both law and fact by failing to analyze that I was not medically examined as stipulated under section 36(1) of the Sexual Offences Act No. 3 of 2006. f.That the learned trial magistrate erred both in law and in fact by not detecting that the crucial witnesses were not bonded to adduce evidence i.e. R, cousin F, Amos Kirui, village elder - Stephen Koech, the doctor who filled the P3 form at Longisa Hospital, Chief, A (the Appellant’s mother) and David Lang’at.g.That the learned trial magistrate erred in law and in fact in failing to detect the contradictions in the clinical officer’s evidence and the lack of any treatment by the clinical officer.h.That the learned trial magistrate erred in law and in fact in rejecting the evidence of DW2 whereas he was subjected to cross-examination by the prosecution and his evidence withstood the rigorous test.i.That the learned trial magistrate erred in law and in fact in meting out excessive punishment whereas I the Appellant had mitigated and the court did not take into account, also dismissed my reasonable defence.

8. The Appeal was canvassed through written submissions.

Appellant’s Submissions: 9. In his undated submissions filed on 28/9/2021 the Appellant submitted that the complainant PW1 could not be relied on because she appeared deceitful and inconsistent in her testimony and that her testimony had numerous loopholes. He argued that PW1 stated that she was a student at [Particulars Withheld] Primary school but did not produce a letter confirming the same. That her testimony ought not to be believed because the road which they supposedly used was busy at the time when the Appellant was said to have met with her, thus people could have seen them. He also added that he himself was handicapped on the right hand and thus could not have done what PW1 described in her testimony. He further pointed out that PW1 testified that she was sent to buy 1kg of sugar yet her brother said she was sent to buy a quarter of a kilogram. It was his view that the inconsitencies made it difficult to believe her.

10. Secondly, the Appellant submitted that the Prosecution did not serve him with all the documents that they intended to rely on such as the treatment notes from Longisa County Hospital and that this was a violation of his right to a fair trial. He also submitted that the numerous inconsistencies in the evidence of the prosecution witnesses resulted in the Respondent not discharging the burden of proof.

11. Thirdly, the Appellant submitted that the Prosecution/ Respondent had a duty to avail witnesses before the court in order for the court to establish the truth. He also submitted that the court was obligated under section 150 of the Criminal Procedure Code to summon witnesses to attain the truth and serve justice. He listed the material witnesses that were never summoned by the trial court and urged the Appellate Court to draw an adverse inference against the Respondents. He relied on the case of Bukenya & Others vs. Uganda (1972) EA, 549 at page 550.

12. Lastly, the Appellant submitted that the trial court meted a harsh and excessive sentence and failed to consider his mitigation. He prayed that the Appeal be allowed, the conviction quashed and sentence set aside.

Respondent’s Submissions 13. The Respondent submitted that their evidence was credible, reliable and of probative value. They submitted that the age of the victim was proven by the age assessment report which indicated that she was below the age of 18 years hence a minor. To this end they relied on the case of Zachary Kiramunya Itigo vs. Republic (2020) eKLR. On identification, the Respondent submitted that the Appellant had defiled the girl and spent significant time with her until 4 a.m. and that he was also well known to the victim. Thus the same was more a case of recognition and not just identification. Thirdly, on the ingredient of penetration, the Respondent submitted that the victim herself testified that the Appellant had forceful sexual intercourse with her and that the medical examination which was done within 24 hours of the incident confirmed that she had been sexually assaulted and that an act of penetration had occurred. Thus the offence was adequately proven.

14. On the charge of assault, the Respondent submitted that the offence was connected to the defilement offence and that it was apparent that the victim was beaten up by the Appellant in the course of the defilement. Further, that this offence was confirmed by the findings in the medical report and thus proven to the required standards.

15. Lastly, the Respondent submitted that the Appellant never challenged any evidence that was tendered by the State and his defence of alibi was raised as an afterthought contrary to the legal provisions. To this end, they relied on the case of Republic vs. Singh s/o Wazir Singh & Others (1939) EACA 145. On the issue of key witnesses, the Respondent submitted that Section 143 of the Evidence Act alowed them to produce whichever number of witnesses as was necessary to prove their case. They submitted that the victim’s mother was never summoned to testify because she had become a refractory witness thus her evidence lacked probative value and her non-appearance was not prejudicial to the Respondent’s case. They cited the Court of Appeal in Criminal Appeal No. 31 of 2005Julius Kalewa Mutunga vs. Republic eKLR.

16. In conclusion, the Respondent submitted that the guiding principles on sentencing were well laid out in Wanyema vs. Republic (1971) E.A. 494. They submitted that the offence attracted a minimum sentence of 15 years and that there were aggravating factors i.e. the assault on the victim thus, a cumulative sentence of 10 years was just and lawful.

Issues For Consideration 17. Upon consideration of the facts of this case, the grounds of appeal and the parties’ submissions, I isolate the following issues for determination:i.Whether the offence of defilement was proven.ii.Whether the offence of assault causing actual bodily harm was proven.iii.Whether the sentence imposed was appropriate under the circumstances.

i. Whether the offence of defilement was provenPARA 18. It is trite that the duty of a first Appellate court is to re-examine and analyse afresh the evidence from a trial court. This principle was aptly laid out in the Court of Appeal case of Mark Oiruri Mose vs. R. (2013) eKLR where it was held that:-“This Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.” 19. The offended section of the law in the present Appeal with respect to the first count is section 8(1) as read with section 8(4) of the Sexual Offences Act No.3 of 2006. The said provisions state as follows:

“8. Defilement1. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.2. 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.3. A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.4. A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 20. For the offence of defilement to stand, three main ingredients must be established. The case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013 eKLR outlined them as follows:“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

21. The victim in this appeal (referred to interchangeably as PW1) first testified that she was 16 years old. However, she produced an age assessment report dated 10th August 2018 (PMFI-1/P-Exhibit 1) which indicated that she was 17 years old. In the subsequent proceedings, the Appellant never controverted this evidence save for raising concerns that the Appellant never brought a letter from school confirming that she was a student therein.

22. The ingredient of age is fundamental in a sexual offence case and requires proof either by documentary evidence, the evidence of a parent or mere observation by the court where it estimates the age of a victim. This was the decision in the High Court at Machakos, Criminal Appeal No. 91 of 2011, Joseph Kieti Seet vs. R. [2014] eKLR where the learned judge quoted the Uganda Court of Appeal case as follows:-“The court held that, ‘It is trite Law that the age of a victim can be determined by medical evidence and other cogent evidence. In the case of Francis Omuroni Versus - Uganda, Court of Appeal Criminal Appeal No. 2 of 2000, it was held thus:In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense ….”

23. From the evidence tendered by the Respondent, the victim’s age was adequately established by the Age Assessment report and there can be no further need to probe her age. The demand by the Appellant that PW1 should have produced a letter from school as claimed is baseless as there is no such requirement in law.

24. The second ingredient is penetration. This is defined under section 2 of the Sexual Offences Act as follows:“penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person;

25. In the present Appeal, PW1 stated in her testimony that the Appellant took her to his home and after he removed his trouser, made her lie on the bed and began to have sexual intercourse with her.

26. This evidence was corroborated by PW4, Dr. Sheryl Cowels, a Physician at Tenwek Hospital who testified that she examined the victim. PW4 stated that she examined the victim 6 days after the date of the incident and confirmed that the victim had undergone recent sexual assault that was traumatic. She also stated that the victim had been physically beaten and produced the P3 Form as PMFI – 4/P-Exhibit 4. She also confirmed that the victim was first attended to at Longisa County Hospital but no P3 form had been filled therein. She produced the Treatment Notes from Longisa County Hospital marked as PMF1 3.

27. The observations in the P3 form were stated as follows: Normal labia, hymenal disruption at 2 o’clock and 6 o’clock with slightly roughened edges, and; White vaginal mucus with no obvious infection. The Treatment Notes from Longisa County Hospital also confirmed that her hymen had been perforated but there were no lacerations. There was no spermatozoa and the victim informed the examining officer that the assailant had used condoms. The P3 Form also indicated that she had gone through sexual contact by penile penetration of her vagina using a condom on two occassions.

28. Evidently, PW1 was penetrated during the ordeal albeit there was no presence of spermatozoa, possibly from the fact that the perpetrator used a condom. From the evidence of PW1, corroborated by medical evidence, I find peneteration was adequately proven.

29. The last and critical ingredient is identification. PW1 testified that the Appellant was someone she was used to seeing around the area and that he was her neighbour. She stated that the Appellant pulled her to his home and on entering his house, he removed her clothes and defiled her. She stated that she had met with the Appellant at around 8. 00p.m. and after he defiled her, he fell asleep. He then woke up at 4. 00 a.m. and told her that he would take her home. While he put on his shoes, she ran outside and locked the Appellant in from outside.

30. The subsequent prosecution witnesses testified that the victim informed them that it was the Appellant who had defiled her. It then follows that the only evidence against the Appellant in respect of being identified as the one responsible for defiling the victim, is that of the victim. When showed the 4 photographs by the prosecution, she was able to identify the house of the Appellant. This evidence is not only one of identification but recognition because the Appellant was well known to the victim.

31. The Court must however be careful when considering the sole evidence of a victim in a sexual offence matter such as the present one. The victim pointed at the Appellant as the person who defiled her. Section 124 of the Evidence Act provides guidance on how the courts should deal with the sole testimony of a victim in a sexual offence. The said section provides as follows:“124. Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him.Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, 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.”

32. In this case the record does not show why the trial court believed the evidence of the victim. It is clear to me however that he evidence was clearly corroborated by the medical evidence and the circumstantial evidence which showed that she had spent the night in the accused’s house. In fact the Appellant placed himself at the scene while his own witnesses confirmed that they were woken up by a girl who raised an alarm outside their house at around 4. 30 am the next morning. They confirmed that the girl was PW1.

33. The Appellant has argued that his defence was credible and that the trial court erred in dismissing it. I have evaluated the said defence. It is clear that the defence was not coherent. The testimonies of DW1 (the Appellant himself) and DW2 contradict those of DW3 and DW4. According to DW1 and DW2, they found the Appellant’s mother interrogating the victim outside her house. However, according to DW3 (Appellant’s mother) and DW4 (Appellant’s brother), the Appellant and DW2 his friend Nicholas only came later after the victim had been escorted home. For this reason, the Appellant’s ascertain that he had not spent the night with the victim and instead spent it with Nicholas cannot be true. The victim recognized him and positively identified him as the offender.

34. The Second aspect of the Appellant’s defence was an alibi. The Appellant stated in his defence that he was at home and had spent the night with his friend Nicholas (DW2).

35. There are principles governing the defence of an alibi for it to be acceptable before court. The essence of an alibi defence should be such that it is raised early enough in the trial in order for the prosecution to look into its veracity and spare the court a frivolous exercise in the event that the prosecution is not able to place the accused at the scene of crime. This was aptly explained by the former Eastern Africa Court of Appeal case ofRepublic vs. Sukha Sing s/o Wazir Singh & Others (1939) 6 EACA, 145 as follows:“If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards there is naturally a doubt as to whether he has not been preparing in the interval, and secondly, if he brings it forward at the earliest possible moment it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped”.

36. I find the Appellant’s alibi defence hollow and incapable of displacing the Prosecution evidence. He was clearly placed at the scene and had spent the entire night with the victim.

37. The Appellant also complained that the Prosecution failed to call crucial witnesses. It has been stated time without number that section 143 of the Evidence Act, Cap 80 does not bind the prosecution to produce a specific number of witnesses. It must only produce those witnesses who according to their assessment are able to prove a charge against an accused person and enable the court to arrive at a decision. The said section provides as follows:-“143. No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”

38. In Keter vs. Republic [2007] 1 EA 135 the court held in addressing a similar issue thus:-“The prosecution is not obliged to call a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.”

39. In this case I have already found the three elements of the offence proved I am satisfied that the witnesses called by the Prosecution in the trial court were sufficient to prove the first charge. The persons who were never summoned would not in my view have given material evidence in this case and the prosecution’s failure to call them does not lead me to draw an adverse conclusion against the prosecution.

40. I must also comment on the issue of the provisions under section 36(1) of the Sexual Offences Act which the Appellant stated that the trial court should have ordered that he be medically examined. It provides as follows:-“36(1) Notwithstanding the provisions of section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence.”

41. The guidance on this legal provision was pronounced in the case of Williamson Sowa Mwanga vs. RepublicCriminal Appeal No. 109 of 2014 eKLR where it was stated thus;“Section 36 (1) of the Act empowers the court to direct a person charged with an offence under the Act to provide samples for tests including for D.N.A test to establish linkage between the accused person and the offence.”

42. The Appellant insinuated that since he was not subjected to a medical examination to confirm that he was the actual perpetrator, the trial court could not ascertain that he was guilty of the offence. He maintained that section 36(1) was never complied with and thus the trial was not fair. The Court of Appeal interpreted the provisions of section 36(1) in the case of Robert Murungi Mumbi vs. Republic Criminal Appeal No. 52 of 2014 eKLR as follows:-“Clearly that provision is not couched in mandatory terms. Decisions of this court abound which affirm the principle that medical evidence on DNA evidence is not the only evidence by which commission of a sexual offence may be proved.”

43. It follows then that the fact that the Appellant did not undergo a medical examination was not necessarily fatal to this case. In any case, PW1 testified that the Appellant used a condom when defiling her. I wonder what findings he was expecting the medical report to come up with where he ensured that he took the necessary precautions.

44. Lastly, I will address the inconsistencies highlighted by the Appellant. These related to the availabilty of sugar the victim was sent to buy and whether she delivered the same in the morning and the distances between the victim’s home, the shop, and the Appellant’s house. These discrepanies were not in any way material as they were merely based on the witnesses’ ability to estimate the distance. This complaint must therefore be dismissed.

45. I find guidance in the case of Dickson Elia Nsamba Shapwata & Another vs. The Republic, Cr. App. No. 92 of 2007 where the Court of Appeal of Tanzania addressed this issue as follows:“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.”

46. Based on the foregoing, I satisfied that the three ingredients of the offence of defilement were proven and that the prosecution adequately discharged their burden of proof. Thus, the conviction for the offence of defilement was safe and is accordingly.

ii. Whether the offence of assault causing actual bodily harm was proven. 47. Section 251 of thePenal Code provides for the offence of assault causing actual bodily harm as follows: -“Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.”

48. The case ofNdaa vs. Republic (1984) eKLR outlined the essential elements of the offence of assault causing actual bodily harm as:Assaulting the complainant or victim; and Occasioning actual bodily harm.

49. Archbold's Criminal Pleading, Evidence and Practice 32nd Edition, Page 959 defines what actual bodily harm entails. It includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor, i.e. complainant. This definition was also explained in the case of Rex vs. Donovan (1984) eKLR where Swift J. stated as follows:-“For this purpose, we think that "bodily harm" has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the complainant. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling."

50. Similary in the case of R. vs. Chan-Fook [1994] 2 ALL ER 557, at paragraph D, Lord Hobhouse L.J. held:-“We consider that the same is true of the phrase ‘actual bodily harm’. These are three words of the English language that receive no elaboration and in the ordinary course should not receive any. The word ‘harm’ is a synonym for injury. The word ‘actual’ indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant."

51. PW1 testified that when she told the Appellant’s mother that he had defiled her, the Appellant descended on her with kicks. Owing to the fact that PW2 also testified that he had heard a woman screaming at around 4. 30 a.m. and a commotion ensuing afterwards, his evidence is circumstantial to what PW1 testified. It can safely be concluded that at that material time, PW1 was actually being beaten hence the screams. In addition to this, PW2 testified that when his daughter came home the next morning, she had injuries on her legs and her eyes were swollen. PW3 who was the victim’s brother also testified that PW1 had injuries on her legs.

52. PW4 who was the physician also testified that the victim had injuries on her legs which she came to learn from the victim herself were injuries sustained as a result of being kicked by the Appellant who had also defiled her. The P3 Form which was marked as PMFI 4 and produced as P-Exh 4 indicated that there was bruising, swelling of right leg in ‘z’ areas and left leg medial area just above the ankle. She also had abrasions overlying the bruise and there was swelling of the anterior right lower leg. The treatment notes from Longisa County Hospital marked as PMFI-3 and produced as P-Exh 3 also indicated that the victim had injuries on her legs at the time of examination.

53. There is clear corroboration of PW1’s testimony but the medical evidence. It is not in question that the injuries inflicted on her amounted to actual bodily harm as defined by the above precedents. I am also convinced that the Appellant was the one responsible for assaulting her. This is because when she left her home to go and buy sugar, she did not have the said injuries. When she went to the Appellant’s house, she was also not hurt. However, when she returned the next morning, she had visible injuries and swelling on her face. She had spent the whole night with the Appellant till 4 a.m. when she escaped and so it could only be that the aftermath of the incident as she narrated was the cause of her injuries.

54. I am satisfied from the evidence on record that this second charge was also proven to the required standard. I uphold the conviction.

iii. Whether the sentence imposed was appropriate under the circumstances. 55. Sentencing is a vital part of a trial process as it is the final process in the administration of justice. In sentencing a convicted person, the court not only demonstrates its condemnation of the said behaviour, but it also seeks to restore social order and public confidence. Some specific sentences also act as a deterrence for future offenders.

56. The above principles were set out in the South African Case ofS. vs. Nchunu & Another(AR 24/11) [2012] ZAKZPHC6, where the Kwa Zulu Natal High Court stated:“It is trite law that the issue of sentencing is one which vests a discretion in the trial court. The trial court considers what a fair and appropriate sentence should be. The purpose behind a sentence was set out in S. vs Scott-Crossley 2008 (1) SACR 223 (SCA) at para 35:‘Plainly, any sentence imposed must have deterrent and retributive force. But off course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the overriding ones.…….It is trite that it is in the interest of justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society.”

57. In the present Appeal, the Appellant was aged 23 at the time of his sentence and was a first offender. In his mitigation, he maintained that he was innocent and pleaded for leniency. The trial magistrate requested for a pre-sentence report which indicated that his family was ready to receive him home and that he was a polite and peaceful man who stopped taking alcohol a few years back. The victim’s family on the other hand felt that he should be incacerated for his criminal acts and violent behaviour. The community at large felt that he should be incacerated while others felt that he was innocent. It was the general recommendation of the probation officer that though the Appellant prayed for a lenient sentence, he was a high risk person who required a strict rehabilitation plan and therefore left the decision for the court’s discretion.

58. With the above background in mind, I now consider whether or not to interfere with the sentence of a trial court in respect of the Appellant. In deciding whether to disturb the sentence meted on a convicted person during an appeal, this Court is guided by the principles in the Court of Appeal case ofBernard Kimani Gacheru vs. Republic[2002] eKLR where it was stated thus:-“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.”

59. Similarly, in Ogalo s/o Owoura (1954) 21 E A C A 270, the Court of Appeal for Eastern Africa held that,“An appellate Court will only alter a sentence imposed by the trial Court if it is evident that it has acted on a wrong principle or overlooked some material factor or if the sentence is manifestly excessive in view of the circumstances of the case. Sentences imposed in previous cases of a similar nature, while not being precedents, do afford material for comparison.”

60. The trial magistrate sentenced the Appellant to serve 10 years in prison for the first count and 1 year for the second count with both sentences running concurrently. He ought under the law to have been sentenced to 15 years’ imprisonment as provided by Section 8 (4) of the Act.

61. This case however presents peculiar circumstances. It was proven that the victim was 17 years old while the probation officer’s report on record stated that the Appellant was 23 years old. According to the evidence,the two met in the evening when the victim was on her way from the shop where she had been sent to buy sugar at about 7. 00pm. According to her evidence, he held her hand and pulled her to his residence, which was about 500 metres from the shop while her home was equidistant in the opposite direction.

62. There was no evidence that the victim resisted the pulling or that she raised an alarm. Upon reaching the Appellant’s house, they had sexual intercourse and then slept until 4. 00am when the Appellant woke her up and told her that it was time to go home. As she got out of the Appellant’s house, the dogs barked attracting the attention of the Appellant’s mother who got out of her house and questioned her. She then said that the Appellant had forced her into his house and had sexual intercourse with her.

63. The Circumstances above clearly do not suggest force. Rather it raises the possibility that the Appellant and the victim may have had a “Romeo and Juliet” relationship and that the alarm raised and subsequent prosecution only arose because other parties came into the picture.

64. While I have found all the ingredients of the offence proven and the conviction legal and proper, I do not consider in the circumstances of this case that a prison sentence of 10 years to be just.

65. I am fortified in arriving at his reasoning by the decision of the Court of appeal in Dismas Wafula Kilwake vs. Republic (2018) eKLR where the court stated as follows:“We hold that the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercises its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it....”

66. In the result, I confirm conviction. I however, in the peculiar circumstances of this case set aside the sentence of the 10 years imprisonment and substitute therefor the period served.

67. The Appellant is set at liberty forthwith unless otherwise lawfully held.

68. Orders accordingly.

JUDGMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 15TH DAY OF JUNE, 2022. ..........................R. LAGAT-KORIRJUDGEJudgment delivered in the presence of Ms.Boiyon for the State, Appellant present in person and Kiprotich(Court Assistant).