Henry Wesa Alias Daniel Moi v Republic

4. PW2, the complainant’s mother, testified that when she got home, she found the complainant seated on a chair, bleeding from her vagina. The appellant was sleeping on the bed. The complainant informed her that the appellant had sexually assaulted her. PW2 rushed her to [Particulars Withheld] Hospital where she received medical treatment. She then reported the incident at the Chief’s Office, who referred them to [Particulars Withheld] Police Post. They were issued with a P3 form which was filled at Muhoroni Hospital. The appellant was arrested by members of the public on 28th May, 2017. The medical evidence indicated that the complainant’s vagina was bruised. Her hymen was broken. The appellant was said to have been on antiretroviral drugs at the timed. In his defence, he denied that he had sexually assaulted the complainant. 5. Upon hearing the evidence of five witnesses, and the appellant’s unsworn defence, the trial Magistrate found the appellant guilty as charged in the main count of defilement, and upon conviction, sentenced him to life imprisonment. His appeal before the High Court was dismissed on both conviction and sentence. 6. The appellant has lodged a second appeal before this Court. His appeal is against sentence only. In his memorandum of appeal dated 19th June, 2024, the appellant challenges his sentence on grounds that: it is ambiguous, inhumane, discriminatory and unconstitutional; it’s mandatory nature takes away the discretion of the court; the law has since developed with respect to mandatory sentences; he is a first offender, is reformed, remorseful, and rehabilitated; and, that the provisions of section 333(2) of the Criminal Procedure Code were not considered. 7. The appeal was canvassed by way of written submissions. The appellant appeared in person. It was his submission that his constitutional right to dignity behooves this court to exercise its discretion, consider his mitigation, and set aside the mandatory life sentence imposed upon him. He submitted that the life sentence is harsh and severe, given that he was a first offender. He stated that he is remorseful and has since reformed since his incarceration. Citing this court’s decision on Julius Kitsao Manyeso v Republic [2023] KECA 827 (KLR), the appellant submitted that the mandatory and indeterminate nature of the life sentence imposed on him the spirit of the Constitution. He urged us to consider the period he spent in remand custody in computation of his sentence. 8. The appeal was opposed. Assistant Director of Public Prosecutions, Mr. Okango, relying on the decision of the Supreme Court in R vs. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) (2024) KESC 34 (KLR) (12th July 2024) (Judgment), submitted that the apex court reaffirmed the legality of the mandatory minimum sentences prescribed under the Sexual Offences Act, provided that the relevant sections have not been successfully challenged. He maintained that the mandatory life sentence imposed upon the appellant was legal and warranted considering the circumstances in which the offence was committed. 9. This is a second appeal. The mandate of this court on a second appeal is confined to matters of law only, unless it is shown that the courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. See Kaingo v. Republic [1982] KLR 213. 10. We have carefully considered the record of appeal, the submissions by both parties, and the law. This is an appeal against sentence only. Its trite law that sentencing lies within the discretion of the trial court, and an appellate court cannot interfere with this exercise of discretion, unless it is shown that the court imposed an illegal sentence. In addition, section 361(1)(a) of the Criminal Procedure Code provides that the severity of sentence is a matter of fact, and as such, outside the realm of this court on a second appeal. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/739/eng@2026-04-24 2

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11. The appellant was sentenced by the trial court to serve life imprisonment, upon his conviction, which is the penalty prescribed by section 8 (2) of the Sexual Offences Act. The gist of his appeal is that the mandatory and indeterminate nature of this sentence rendered it unconstitutional, and that the sentence is harsh and excessive in the circumstances of this case. 12. We find these submissions unmeritorious and misconceived. We are guided by the Supreme Court’s decision in Republic v Julius Kitsao Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR), where the Supreme Court observed that the substitution of mandatory or statutory sentencing provisions by courts in place of the sentence prescribed by Parliament is unconstitutional, a usurpation of legislative authority, and a violation of the doctrine of separation of powers. In that case, the apex court held that the Court of Appeal acted ultra vires when it assumed original jurisdiction and substituted the mandatory life sentence with an alternative term, thereby encroaching on the exclusive legislative role of setting penalties under statute. In the same vein, we cannot delve into the question of the constitutionality of the sentence of life imprisonment, as it was not raised and determined by the High Court and cascaded through the proper channels on appeal. 13. Importantly, the Supreme Court reaffirmed that its earlier decision in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) (14 December 2017) (Judgment) which held that its earlier decision did not invalidate mandatory or minimum sentences generally in the Penal Code, the Sexual Offences Act, or other statutes. The court made it clear that “Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution” and held further that the decision was confined to the specific issue of the mandatory death sentence with respect to the offence of murder. See Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions). 14. Further, the Supreme Court in R vs. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (supra) affirmed mandatory minimum sentences provided for under the Sexual Offences Act. The court held that imposing the mandatory minimum sentences does not, of itself, deprive the sentencing court power to exercise judicial discretion. The apex court further noted that the sentences imposed by the Sexual Offences Act are lawful, and remained lawful, as long as the penalty sections remained valid. The apex court directed that the constitutionality or otherwise of the said sentences would need to be tested through the hierarchy of courts before ultimately reaching the Supreme Court for consideration and determination. 15. In the circumstances, and in view of the settled law as outlined above, we find no merit in the appellant’s submissions. The mandatory life sentence imposed under the Sexual Offences Act remains lawful and constitutionally valid, and the arguments relating to the perceived severity of the sentence fall outside the scope of a second appeal, which is confined to examining the legality of the sentence. 16. Accordingly, this appeal lacks merit and is hereby dismissed. DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF APRIL, 2026. ASIKE-MAKHANDIA ......................................... JUDGE OF APPEAL H. A. OMONDI ......................................... https://new.kenyalaw.org/akn/ke/judgment/keca/2026/739/eng@2026-04-24 3

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JUDGE OF APPEAL L. KIMARU ......................................... JUDGE OF APPEAL I certify that this is a true copy of original. Signed. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/739/eng@2026-04-24 4

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