Wandera v Republic (Criminal Appeal E038 of 2024) [2026] KEHC 971 (KLR) (2 February 2026) (Judgment) Neutral citation: [2026] KEHC 971 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT BUSIA CRIMINAL APPEAL E038 OF 2024 WM MUSYOKA, J FEBRUARY 2, 2026 BETWEEN JAMES WANDERA .................................................................................. APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (Appeal from conviction and sentence, by Hon. Ogola, Resident Magistrate, RM, in Busia MCSOA Case No. 102 of 2014, of 8th October 2014) JUDGMENT 1. The appellant was convicted of defilement of a minor of 4 years, contrary to section 8(1)(2) of the Sexual Offences Act, Cap 63A, Laws of Kenya. It was alleged that that happened on 5th October 2014, at [Particular Withheld] village, Bukhayo West Location, Busia. The appellant pleaded not guilty to the charge, on 8th October 2014, and was sentenced to life imprisonment. 2. He filed the appeal herein. The grounds are that the sentence was harsh and mandatory; the ingredients of defilement were not conclusively proved; the defence was not considered, and the sentence was harsh in relation to the weight of the cases. 3. Although directions were given, for filing of written submissions, I do not see any, in the record before me. 4. The principal ground is on sentence. The sentence imposed was life imprisonment. It is what section 8(2) of the Sexual Offences Act provides for, where the victim is aged 4 years. It is a mandatory sentence. The trial court had no alternative sentences to impose. Going by the recent jurisprudence, emerging from the Supreme Court, it is a valid sentence. See Republic vs. Manyeso [2025] KESC 16 (KLR) (Mwilu, DCJ&VP, Ibrahim, Wanjala, Ndung’u & Lenaola, SCJJ) and Republic vs. Ayako [2025] KESC 20 (KLR) (Mwilu, DCJ&VP, Ibrahim, Wanjala, Ndung’u & Lenaola, SCJJ). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/971/eng@2026-02-02 1
page 1 of 2
5. On the ingredients of the ofience not being proved, and the defence not being considered, the applicant pleaded guilty. There was no formal trial. There was no evidence adduced to establish the ofience, because the appellant conceded to or admitted the charge. The prosecution was under no obligation to prove anything. The appellant was not put on his defence. He could not be, because there was no formal hearing, where evidence could be adduced, which he would have been required to respond to, by way of defence statement. He made no defence statement. There was no defence to be disregarded. 6. In view of everything discussed above, there is no merit in the appeal. 7. The appellant had also filed an application, in Busia High Court Misc. Crim. Application No. E008 of 2023, for leave to appeal out of time. He filed a similar application, in Busia HC Misc. Cr. Application No. E004 of 2024. That application was allowed on 11th March 2024, and the appeal herein was filed. The file, in HC Misc. Cr. Application No. E004 of 2024, was then closed. The making of orders, of 11th March 2024, rendered the application, in Busia HC Misc. Crim. Application No. E008 of 2023, superfluous and otiose. The file should have been closed thereafter. It should now be closed. 8. He had also filed Busia HCCR. Pet. No. E032 of 2021, for review of sentence. That petition was struck out, on 22nd October 2021, and the appellant was advised to seek leave to file appeal out of time, which he did. Although the file, in Busia HCCr. Pet. No. E032 of 2021, is marked “struck out,” it should have been moved to the archives, instead of being put together with the instant appeal file. 9. The appeal herein is hereby dismissed, for the reasons given in the foregoing paragraphs. The conviction is afirmed, and the sentence confirmed. The appeal file shall be closed. Orders accordingly. DELIVERED, DATED AND SIGNED IN OPEN COURT, AT BUSIA, THIS 2ND DAY OF FEBRUARY 2026. W MUSYOKA JUDGE Mr. Arthur Etyang, Court Assistant. Mr. James Wandera, the appellant, in person. Advocates Mr. Onanda, instructed by the Director of Public Prosecutions, for the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/971/eng@2026-02-02 2
page 2 of 2