George Morara Oroko v Republic

iii. That the court failed to exercise discretion in sentencing, contrary to emerging jurisprudence. iv. That the sentence imposed was harsh and excessive given the Appellant’s status as a first offender. 4. The appeal was canvassed by way of written submissions which I have considered. 5. The Appellant faulted the trial court for imposing the statutory minimum sentence of ten years under Section 3(3) of the Sexual Offences Act without considering his mitigation and personal circumstances. He argued that Sections 216 and 329 of the Criminal Procedure Code require the court to consider the mitigating factors before sentencing and that as a first offender, he was entitled to a lenient, rehabilitative approach. 6. He urged the court to substitute the ten-year term with a shorter, judicially evaluated sentence, citing his remorse, rehabilitation, and the hardship a prolonged sentence would cause. 7. The Respondent, the Director of Public Prosecutions, through Mr. Joel K. Chirchir, opposed the appeal save to the extent of recognizing that the period the Appellant spent in pre-trial custody ought to have been considered under Section 333(2) of the Criminal Procedure Code. 8. The Respondent argued that the ten years sentence is the minimum prescribed by Section 3(3) of the Sexual Offences Act and cannot be said to be harsh or excessive. It was submitted that the trial court properly exercised its discretion within the limits of the law and that the conviction and sentence should be upheld, subject only to crediting the period spent in custody. 9. As the first appellate court, I am still minded to consider the entire evidence presented before the trial court with a view to arriving at my own independent findings while bearing in mind the fact that I did not see or hear the witnesses testify. (See Okeno vs. Republic [1972] EA 32). 10. The Prosecution presented the evidence of 3 witnesses as follows: a. Paul Mayaka (PW1), a clinical officer, examined the complainant on 28th December 2020. He found that she had a broken hymen, though with no fresh tears, and concluded that rape had occurred. b. FM (PW2), the complainant, testified that on the material day, she went to the accused’s home to collect milk. The accused, her cousin, met her on the road near a napier-grass farm, pushed her to the ground, threatened her with a panga, and raped her repeatedly. She later reported to Kiambeere Police Post and was examined at Nyamira County Hospital. c. Merveline Bosibori (PW3), the investigating officer, corroborated the report. The accused was arrested by the area chief and Nyumba Kumi members on 2nd January 2021. She produced the P3 Form and recorded the complainant’s statement. 11. When placed on his defence, the Appellant gave an unsworn statement in which he denied the charge and alleged that there was a grudge between him and the complainant. As I have already stated in this judgment, the trial court found the prosecution evidence consistent and credible. I reiterate that the Appellant was convicted on the charge of rape and sentenced to serve 10 years imprisonment. 12. I uphold the trial court’s finding on conviction and noting that the appeal is only on sentence, I find that the main issues for determination are as follows: a. Whether the sentence imposed by the trial court was harsh and excessive. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19377/eng@2025-10-23 2

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b. Whether the trial court erred by failing to consider the Appellant’s mitigating factors and period in custody as required under Sections 216, 329, and 333(2) of the Criminal Procedure Code. c. Whether the mandatory minimum sentence under Section 3(3) of the Sexual Offences Act is unconstitutional or unduly restrictive of judicial discretion. Analysis and Determination (a) Sentence 13. Section 3(3) of the Sexual Offences Act 2006 provides that : A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life. 14. The above provision sets ten years as the minimum sentence, but not a fixed or mandatory term. This means that the section leaves a band of discretion upwards and as such, the the trial court may impose any term from ten years to life, guided by the facts of the case. 15. The Appellant herein was sentenced to the minimum, ten years, and I therefore find that the trial magistrate properly exercised leniency within the statutory framework. (b) Mitigation and Custodial Period 16. The record shows that the Appellant was a first offender and that he gave a mitigation statement before sentencing. I however note that the trial court did not expressly consider the period he spent in remand custody while awaiting his trial. 17. Section 333(2) of the Criminal Procedure Code mandates courts to take into account the period an accused has spent in custody. In Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR the Court of Appeal in held that: “ The proviso to Section 333(2) of the Criminal Procedure Code obligates a court to take into account the period spent in custody when sentencing an accused person. Failure to do so renders the sentence unlawful to that extent.” 18. I therefore find that while the sentence itself was lawful, the omission to credit the pre-trial custody period is an error warranting correction. (c) Mandatory Minimum Sentences 19. I note the Appellant’s reliance on Muruatetu vs. Republic [2017] eKLR and similar jurisprudence. I find that while Muruatetu dealt specifically with the death penalty under Article 26 of the Constitution, subsequent High Court decisions such as Jared Koita Inyika vs. Republic [2019] eKLR) have interpreted its reasoning to apply to certain mandatory minimums. In Joshua Gichuki Mwangi vs. Republic [2021] eKLR the Court of Appeal clarified the issue and held that: “ The minimum sentences under the Sexual Offences Act are not unconstitutional per se. What is unconstitutional is where the court is precluded from considering mitigating circumstances.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19377/eng@2025-10-23 3

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20. In the present case, I note that the learned trial magistrate not only heard mitigation but also imposed the lowest permissible sentence. I find that there is therefore no fettering of discretion or violation of the Muruatetu principles. 21. I find that the sentence of 10 years imprisonment imposed on the Appellant is lawful and within the prescribed minimum under Section 3(3) of the Sexual Offences Act. It is my finding that the trial court erred only to the extent that it did not credit the Appellant’s pre-trial custody period, contrary to Section 333(2) of the Criminal Procedure Code. Disposition 22. 23. Accordingly, this Court makes the following final orders: a. The appeal on conviction having been abandoned, the conviction is upheld. b. The sentence of 10 years imprisonment is affirmed, but shall be computed from the date of arrest, taking into account the period the Appellant spent in custody before conviction, in accordance with Section 333(2) CPC. c. Save for that adjustment, the appeal on sentence fails. It is so ordered. JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS THIS 23RD DAY OF OCTOBER 2025. W. A. OKWANY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19377/eng@2025-10-23 4

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