Philip Momanyi Omwenga v Republic

reasons), a child aged thirteen years. He also faced an alternative count of committing an indecent Page 2 of 8

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act with a child, contrary to section 11(1) of the Sexual Offences Act with particulars being that during the said period, he caused his penis to rub on the vagina of JMO. The appellant pleaded not guilty to both counts paving way for his trial. [2] The prosecution’s case was as follows. JMO, then aged 13 years during the period in question whenever she was left at home alone, the appellant who was her paternal uncle and therefore well known to her, would come into the house, remove her undergarments and sexually assault her, and warn her not to disclose the incidents to anyone but would nonetheless give her 10/=. [3] PW2, DM (real name again redacted for same reasons), who was the mother of JMO was summoned to school by the administration, and informed that JMO was pregnant. Upon interrogation, she disclosed that she had been Sexually assaulted by the appellant twice resulting in the pregnancy. Together with JMO they reported the incident to the area chief and subsequently to Rioma Police Station. She confirmed that JMO had given birth as a result of the pregnancy. [4] PW3, Jackson Sobok, a Clinical Officer at Marani Level 5 Hospital examined JMO then aged 13 years, who was presented with a history of defilement. On examination, her hymen was absent, which was evidence of Page 3 of 8

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penetration. A pregnancy test was positive as it revealed a foetus of about Page 4 of 8

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20 weeks. He concluded that the offence of defilement had been committed. PW4 PC Mendino Odhiambo, the investigating officer confirmed that JMO named the appellant as the person who had defiled her on the two occasions. The appellant was subsequently arrested by Administration Police Officers and taken to Rioma Police Station where he was re-arrested and charged. [5] PW5, Salvin Cheruto Katukai, Senior Government Analyst at the Government Chemist at Kisumu, pursuant to a court order obtained buccal swabs from the appellant, JMO, and the child. Upon analysis, the findings revealed a 99.9% probability that the appellant was the biological father of the child born of PW1 thereby confirming the biological link. [6] Placed on his defence, the appellant gave a sworn statement denying the indictment. He contended that he was framed with the case. He closed his defence without calling any witness. [7] The trial court after considering the totality of the evidence found that the prosecution had proved beyond reasonable doubt that JMO was a child then aged thirteen years, that she was defiled during the material period in question, and that the appellant was the perpetrator. It relied on the complainant’s direct testimony, corroborated by medical evidence from PW3, and the DNA results linking the appellant to the Page 5 of 8

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child born of PW1. The defence accordingly was found to be implausible. Page 6 of 8 The appellant was

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convicted and sentenced to 20 years’ imprisonment being the statutory minimum sentence upon considering the Mitigation proffered. [8] Aggrieved by the conviction and sentence aforesaid, the appellant lodged an appeal before the High Court of Kenya at Kisii, “the first appellate court”, on the grounds that the trial court erred in failing to consider the timing of the alleged offences vis-à-vis the duration of pregnancy and delivery; misdirected itself by believing the testimony of prosecution witnesses without proper analysis; failed to ascertain the complainant’s age; neglected to interrogate the mix-up in the names of JMO in the government analyst’s report; overlooked the inordinate delay in producing the DNA report; and that by reason of these misdirection’s, it proceeded on wrong premises leading to a miscarriage of justice. [9] The first appellate court upon re-evaluating the entire record as required of it agreed with all the conclusions and findings arrived at by trial court and accordingly dismissed the appeal in its entirety. [10] Even with the concurrent findings of the two courts below, the appellant has not relented in his pursuit of justice. He now approaches this Court perhaps for his last forum of redress on various grounds but it is not necessary to set them out as at the plenary hearing of the appeal the appellant abandoned the appeal on conviction but opted Page 7 of 8

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to pursue the Page 8 of 8

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appeal limited to sentence only. On this ground, the appellant’s only complaint was that the sentence imposed was harsh and excessive. [11] When the appeal was called out for plenary hearing, the appellant appeared in person on our virtual platform whereas Mr. Okeyo, learned prosecution counsel appeared for the respondent. It transpired that only the appellant had filed written submissions which he sought to entirely rely on in arguing his appeal. [12] In his submissions in this regard, the appellant challenged the constitutionality of the mandatory sentence imposed. Guided by the landmark Supreme Court decision in Francis Karioko Muruatetu vs. Republic [2017] eKLR and followed in Evans Wanjala Wanyonyi vs. Republic [2019] eKLR and Christopher Ochieng V Republic [2018] eKLR, the appellant posited that mandatory sentencing frameworks were unconstitutional because they strip judicial officers of their vital discretion to mete out proportionate sentences tailored to individual mitigating circumstances. [13] In the ultimate, the appellant prayed that this Court allows the appeal, set aside the sentence and set him at liberty forthwith. [14] Counsel for the respondent in response orally submitted that the law was clear: where the complainant is aged between thirteen and fifteen Page 9 of 8

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years, the mandatory minimum sentence prescribed is twenty years’ Page 10 of 8

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imprisonment. The sentence imposed was therefore lawful, proper, and commensurate with the statutory framework. In conclusion, counsel urged this Court to uphold the sentence imposed and affirmed by the first appellate court by dismissing the appeal in its entirety. [15] The complaint regarding the legality of the sentence, must be tested against section 8(3) of the Sexual Offences Act which prescribes a minimum of twenty years’ imprisonment where the complainant in the offence is between the ages of twelve and fifteen years. The constitutionality of these minimum sentences has been the subject of recent jurisprudence in our various superior courts. For instance, In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR), the Supreme Court categorically held that minimum sentences under the Sexual Offences Act are constitutional and binding, and courts must impose them unless and until they are declared unconstitutional. The Court clarified that “mandatory sentences leave the trial court with absolutely no discretion… minimum sentences however set the floor rather than the ceiling when it comes to sentences.” The Supreme Court specifically excluded the Sexual Offences Act from its earlier jurisprudence on mandatory sentences, clarifying that its reasoning Page 11 of 8

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applied strictly to the offence of murder under section 204 of the Penal Code. Page 12 of 8

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[16] This position was reiterated in Charles & Another v Republic (Criminal Appeal 38 of 2019) [2024] KECA 1902 (KLR), where this Court, ceding to the binding nature of the Supreme Court’s pronouncement, stated: “Unfortunately for the appellants, that jurisprudential trajectory was halted by the recent decision by the Supreme Court… In that case, the Supreme Court held that the mandatory minimum sentences in the Sexual Offences Act are not unconstitutional; and that trial courts have no discretion to go below the minimum statutory sentences in sexual offences.” [17] Earlier, in Christopher Ochieng v Republic [2013] eKLR, this Court had already affirmed that once the age of the complainant is established, the prescribed statutory sentence must follow, and judicial discretion is limited to ensuring compliance with section 333(2) of the Criminal Procedure Code, which obligates courts to take into account time spent in remand custody. [18] Accordingly, the binding principle is that once the complainant’s age is established within the statutory bracket, the trial court has no discretion to reduce or alter the prescribed minimum sentence. Its authority is confined to ensuring mathematical compliance with section 333(2) CPC by deducting or backdating any time spent in pretrial custody. [19] Going by the foregoing, we are satisfied that the sentence imposed Page 13 of 8

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on the appellant was lawful, constitutional, and consistent with statutory Page 14 of 8

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principles governing sentencing jurisdiction. When the appellant was presented in the trial court on 18 th March 2019 for plea, he was immediately released on bail of Kshs.100,000/= with a surety in the same amount. The terms were met and he was subsequently released on bail. He was therefore out on bail throughout his trial until conviction and sentence. He cannot therefore benefit from the provisions of section 333(2) of the Criminal Procedure Code. [20] It follows therefore, that the appeal is wholly devoid of merit, collapses and is accordingly dismissed in its entirety. Dated and delivered at Kisumu this 25th day of September, 2026. ASIKE-MAKHANDIA ……………….………………… JUDGE OF APPEAL E.C. MWITA ……………….………………… JUDGE OF APPEAL B. ONGAYA ………………...……………… JUDGE OF APPEAL I certify that this is a true copy of the original DEPUTY REGISTRAR Page 15 of 8

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