Richard Osebe Nyanchoka v Director of Public Prosecutions

4. The trial court failed to consider his mitigation 5. He is remorseful, a first offender, and rehabilitated 6. The sentence of life imprisonment was harsh and excessive Appellant’s Submissions 5. The Appellant, appearing in person, submitted that the sentence of life imprisonment was harsh and excessive considering his plea of guilty, remorse, and reformation. He urged the court to exercise leniency. 6. The Appellant cited Nilsson v Republic [1957] EA 170, where the Court held that punishment must fit both the crime and the offender; James v Rex (1950) 18 EACA 147, which afirmed the appellate court’s power to interfere with a manifestly excessive sentence; and R v Shereshawsky (1912) 8 Cr App R 197, which underscored the need to temper justice with mercy. 7. The Appellant also referred to Paul Odhiambo Mbola v Republic [2020] KEHC 7582 (KLR), where the Courtconsidered a resentencing application in a similar offence and imposed a lesser term on account of rehabilitation. 8. The Respondent opposed the appeal on grounds in the submission dated 12th November 2025. Respondent contended that Section 348 of the Criminal Procedure Code provides that a party that has pleaded guilty to an offence cannot on appeal challenge conviction but can challenge the extent or legality of s the appeal. Issue for Determination 9. I have considered the appeal in light of the trial record, the amended grounds of appeal and submissions filed by the Appellant and the issue for determination is whether this court has jurisdiction to interfere with the sentence of life imprisonment imposed under section 8(2) of the Sexual Offences Act. Analysis and Determination 10. The record of the trial court confirms that the plea was properly taken and was unequivocal in accordance with Adan v Republic [1973] EA 445. The conviction was therefore sound and has not been challenged. 11. Section 8(2) of the Sexual Offences Act, which is couched in mandatory terms, provides that— “ 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.” 12. In Karisa Chengo & 2 Others v Republic [2015] eKLR and Albanus Mwasia Mutua v Republic [2006] eKLR, both decided before the Supreme Court’s clarification in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] eKLR (Muruatetu 2), the Court of Appeal held that an appellate court may only interfere with a sentence where it is illegal, based on wrong principles, or manifestly excessive. The sentence in this case accords with the statute and cannot be said to be illegal or based on wrong principle. 13. The Appellant’s reliance on Paul Odhiambo Mbola v Republic [2020] KEHC 7582 (KLR) is also noted. That decision was also rendered before Muruatetu 2 (2021), at a time when some courts https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18543/eng@2025-11-13 2

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extended the reasoning of Muruatetu (2017) to mandatory or minimum sentences under other statutes. 14. The Supreme Court in Muruatetu 2 clarified that its 2017 decision applies only to the mandatory death sentence under section 204 of the Penal Code and does not extend to other statutes such as the Sexual Offences Act. The Court further directed that courts shall not apply Muruatetu (2017) reasoning to other mandatory or minimum sentences unless those provisions are specifically challenged and declared unconstitutional. 15. Section 8(2) of the Sexual Offences Act has not been declared unconstitutional and therefore remains valid and binding. The life sentence imposed on the Appellant was lawful and in accordance with the statute. 16. Whereas the older authorities of Nilsson v Republic [1957] EA 170, James v Rex (1950) 18 EACA 147, and R v Shereshawsky (1912) 8 Cr App R 197, all decided long before Muruatetu 2, highlight enduring principles of mercy and proportionality but cannot override a clear legislative mandate. The Appellant’s remorse and efforts at rehabilitation are duly acknowledged; however, such considerations do not, in the circumstances of this case fall for determination within the scope of appellate review. Disposition 17. From the foregoing analysis, I make the following orders: 1. The Appellant’s conviction in Keroka Criminal Case No. 713 of 2008 is upheld. 2. The sentence of life imprisonment imposed under section 8(2) of the Sexual Offences Act is lawful, mandatory, and binding, and is hereby afirmed. Orders accordingly. DELIVERED AT NYAMIRA THIS 13TH DAY OF NOVEMBER 2025 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda Appellant - Present For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18543/eng@2025-11-13 3

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