Otieno v Republic

determined that she was ve months pregnant, with whitish vaginal discharge and a torn hymen, and concluded that she had been deled. 3. PW3, Godwin Khamala, a government analyst, received DNA samples taken from the appellant, EAO, and the child, pursuant to a court order and his analysis established with 99. 9% certainty that the appellant was the biological father of the child born out of that Sexual indiscretion. PW4, PC Isaac Opado, accompanied EAO’s father to arrest the appellant, whom he pointed out to him. PW6, PC Emily Musyoka, the investigating ocer took over the investigation of the case from her colleague PC Consolata and upon concluding the investigations, preferred the charges against the appellant. 4. In his sworn statement of defence, the appellant, denied committing the oence or impregnating EAO. He suggested that perhaps his brother was responsible for the pregnancy. 5. The court of the rst instance in its judgment considered the totality of the evidence and returned a verdict of guilty. Consequently, the appellant was convicted of the oence and sentenced to 20 years imprisonment. 6. The appellant lodged an appeal in the rst appellate court at Homa Bay. The rst appellate court after undertaking a thorough re-evaluation of the evidence, tendered before the court of rst instance as is mandated of a rst appellate court, and considering both the factual matrix and the applicable law, dismissed the appeal in its entirety. 7. The appellant, dissatised with both the ndings of the two courts below now seeks the intervention of this Court limited to sentence only. He contends that the two courts below erred in law by failing to impose a discretionary sentence and instead applied the mandatory minimum sentence without considering that the current jurisprudence, emphasizes discretionary sentencing; that the mandatory minimum sentence implied that the mitigating circumstances and relevant factors of consideration were not taken into account; and nally, that this Court ought do consider the application of section 333(2) of the Criminal Procedure Code when reducing the sentence if at all. 8. When the appeal was called out for plenary hearing, the appellant appeared on our virtual platform from Kibos maximum prison, while Mr. Kerosi, learned prosecution counsel appeared for the respondent. Both parties opted to rely entirely on their respective written submissions that they had led and exchanged. 9. The appellant, in his submissions merely reiterated and expounded on the above grounds of appeal and we need not therefore rehash the same. Suce to add that he prayed in conclusion that this Court substitute the imposed mandatory minimum sentence with a more lenient sentence, taking into account the mitigating circumstances and the provisions of section 333(2) of the Criminal Procedure Code. 10. In opposing the appeal, Mr. Kerosi argued that the sentence imposed was lawful and remains lawful so long as section 8 of the Sexual Offences Act remains unhinged. Counsel further submitted that the sentence imposed was the statutory minimum under section 8(3) of the Sexual Offences Act, given that the EAO was aged about fourteen years, and that the courts below correctly appreciated the mandatory nature of the provision. He relied on Republic v Joshua Mwangi Isla & 3 others (Amicus Curiae) [2024] KESC (KLR), where the Supreme Court armed the legality of sentences imposed pursuant to section 8 of the Sexual Offences Act, and claried that emerging jurisprudence on discretion does not invalidate the statutory framework. He also cited Benard Kimani Gacheru v Republic [2002] eKLR, where this Court held that an appellate court will not interfere with sentence unless the sentencing court acted on wrong principles, overlooked material factors, or imposed an illegal or manifestly excessive sentence, which was not the case here. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1881/eng@2026-09-25 2

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11. Counsel concluded by submitting that the appellant had not demonstrated any error of law, misdirection, or violation of constitutional provisions to warrant interference with the concurrent ndings of the two courts below on sentence. He therefore urged this Court to dismiss the appeal in its entirety. 12. This is a second appeal against the sentence imposed on the appellant. The sole issue for determination is therefore whether that sentence is capable of interference by this Court. 13. Section 8(3) of the Sexual Offences Act prescribes that a person who commits an act of delement with a child aged between twelve and fteen years shall upon conviction be sentenced to imprisonment for a term of not less than twenty years. The provision is couched in mandatory terms. This Court has pronounced itself severally on the constitutionality and application of mandatory minimum sentences under the Sexual Offences Act. In Dismas Kilwake v Republic [2018] eKLR, for instance, it held that while mandatory minimum sentences may appear to fetter judicial discretion, they remain lawful unless declared unconstitutional, and courts are bound to apply them. In Joshua Mwangi v Republic [2022] eKLR, the Court reiterated that sentencing under section 8 of the Sexual Offences Act is guided by statute, and appellate courts will not interfere unless the sentence is illegal, based on wrong principles, or manifestly excessive. 14. The Supreme Court of Kenya in Republic v. Joshua Gichuki Mwangi (supra) has settled the issue beyond peradventure by holding that statutory minimum sentences are constitutional, valid, and consistent with the separation of powers. Consequently, courts possess absolutely no judicial discretion to depart downward from the statutory oor prescribed by Parliament in the statute unless a specic provision is formally declared unconstitutional. 15. Ultimately, we are satised that the sentence imposed was the statutory minimum under section 8(3) of the Sexual Offences Act and there is no basis for our interference if at all. The trial court considered the appellant’s mitigation but was bound by the statutory framework. The rst appellate court correctly upheld the sentence, nding no misdirection in law. The appellant has not demonstrated any error of law, misapplication of principle, or violation of constitutional provisions to warrant interference by this Court. 16. The appeal on sentence accordingly lacks merit and is hereby 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 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1881/eng@2026-09-25 3

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