Morris Andari Siaya v Republic

a. That among other things reform and rehabilitation of the appellant should form the main basis of determination of the sentence. b. That the appellant is of advance age and sentence imposed is manifestly excessive. c. That the appellant is a first offender and is remorseful. d. That the punishment lack element of mercy and leniency. e. That the minimum mandatory nature of sentence denies the appellant’s right of a fair trial, benefit of least severe sentence as enshrined in Article 50 (2) (p), 27 (1) (2), 20 (3) (a) (b), 28 and 19 (2). f. That the minimum mandatory nature of sentence denies the Hon. court to exercise its own discretional power and independency to pronounce lenient and proportional sentence. 5. The appeal was canvassed by way of submissions. The appellant submitted that he was an old man of 74 years and thus the sentence exceeded his life span thereby serving no any purpose but was manifestly excessive. 6. That the minimum mandatory nature of the sentence denied the trial court its exercise of its own discretionary power and independence to pronounce a lenient sentence. 7. That the Judiciary Sentencing Policy Guidelines provides that in cases of elderly offenders, the court ought to ensure that the sentence imposed does not amount to an excessive punishment in view of the age as well as in light of the offence committed. 8. I have considered the appeal. Sentencing is in the discretion of the trial court but such discretion must be exercised judiciously and not capriciously. The trial court must be guided by the evidence and sound legal principles. The Court of Appeal in the case of Ogolla s/o Owuor v Republic, (1954) EACA 270, held as follows: “ The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.” 9. The applicable principles in considering sentence on appeal were restated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, in the following terms: “ It is now settled law, following several authorities by this court and the high court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account the wrong material, or acted on the wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1343/eng@2026-02-12 2

page 2 of 4

10. In applying the above guidelines, I observe that Section 8(3) of the Sexual Offences Act provides as follows; “ (3) 11. A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” The appellant sought to rely on the provisions of the Sentencing Policy Guidelines regarding the elderly to have his sentence reduced. The Sentencing Policy Guidelines 2023, Gazette Notice No. of September 1, 2023 in relevant parts provides as follows: “ 3.3 Terminally ill and Elderly Offenders and Offenders With Chronic illness 3.3.1 As with the case of offenders with disability the consideration should be whether in view of the illness or age, the sentence rendered is excessive. There are two dimensions worth considering. Firstly, whether the illness or old age would cause the offender to experience undue and unjustifiable hardship in custody and whether the conditions in custody would be termed inhuman bearing in mind the offenders’ state. Secondly, whether the offender’s condition is one that would cause undue burden on other offenders and/or prison officers taking care of them. 3.3.2 Article 57 of the Constitution affirms the right of older members of society to live in dignity. The sentence imposed on them must therefore not undermine this right. Situational Analysis 3.3.3 The Kenya Prisons Service has made a good attempt at addressing the needs of HIV/AIDS positive offenders. However, other offenders with terminal illnesses such as those in need of chemotherapy for cancer treatment; hypertension; diabetes or other chronic illnesses, are not adequately catered for and face undue hardship while in custody. Policy Directions 12. 3.3.4 When imposing sentencing orders against terminally ill and elderly offenders, a court should ensure that the sentence imposed does not amount to an excessive punishment in view of the extent of illness and age, as well as in light of the offence committed. In particular, the court should ensure that the sentence imposed does not amount to cruel, inhuman or degrading treatment in view of the extent of illness or age of the offender. 3.3.5 Non-custodial sentences – or suspended sentences - should be considered unless, in light of the nature and seriousness of the offence committed and other factors, justice would demand the imposition of a custodial sentence.” This court readily accepts that serious nature of the charge of defilement contrary to section 8 (1) (3) of the Sexual Offences Act and notes the the commission of the obnoxious act by the appellant against a minor call for a deterrent custodial sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1343/eng@2026-02-12 3

page 3 of 4

13. The appellant faulted his sentence on the grounds that the minimum mandatory nature of the sentence denied the trial court its exercise of its own discretionary power and independence to pronounce a lenient sentence. 14. The issue of mandatory sentences in Kenya was considered by the Supreme Court in the case of Francis Karioko Muruatetu & Another v Republic [2017] eKLR (commonly referred to as Muruatetu 1). It had been interpreted by many that the decision was authority to the effect that, just like in cases of murder, those who were convicted of sexual offences and whose sentences were passed on the basis that the trial Courts had no discretion but to impose the said mandatory sentences are now at liberty to petition the High Court for orders of resentencing in appropriate cases. 15. However, in Francis Kariuki Muruatetu & Another v Republic: Katiba Institute & 5 Others (Amicus Curiae) (2021) (otherwise referred to as Muruatetu 2), the Supreme Court subsequently clarified that its directions given in Muruatetu (1) regarding the unconstitutionality of mandatory sentences was limited only to cases of murder and do not necessarily extend to sexual offences or robbery with violence cases (see also Juma Abdalla v Republic, Court of Appeal Criminal Appeal No. 44 of 2018 (2022) KECA 1054 (KLR) (7 October 2022). 16. I have considered the circumstances of the case. The appellant defiled the victim who was of tender years for five consecutive days. In my view, the circumstances of the offence were aggravating. 17. I have also considered the appellant’s mitigation before the trial court that he was an old man. Further to the above, I have also considered the pre-sentence report that showed the appellant was not remorseful as well as the Victim Impact Report that showed that the complainant and her family were apprehensive of re-victimization should the appellant be released. 18. Further, I have considered the appellant’s age and the Judiciary Sentencing Policy on the old persons and those suffering from serious illness. Notwithstanding the old age of 74 years, and that the sentence of 20years might seem excessive, that sentence is mandatory by law and the circumstances of the offence, defilement of a 15year old minor for 5 continuous days, I am unable to interfere with the sentence. 19. It is my view therefore that it has not been demonstrated to this Court that the trial court acted upon wrong principles or overlooked some material factors when sentencing the appellant. 20. Accordingly, the appeal is without merit and is hereby dismissed. It is so decreed. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF FEBRUARY, 2026. A. MABEYA, FCI Arb JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1343/eng@2026-02-12 4

page 4 of 4