Tio v Republic

the minor as grievous harm. The corresponding P3 form and medical reports were formally produced and admitted as exhibits. In his initial mitigation before the trial court, the Appellant advanced the narrative that he was merely disciplining his child for playing with dirty water and that he did not foresee or intend for the injuries to escalate to such a catastrophic extent. 4. Prior to pronouncing the sentence, the learned trial Magistrate judiciously invoked the court's discretion to order a pre-sentencing report from the Probation Officer, alongside a comprehensive Victim Assessment Report from the Directorate of Children's Services, to ensure that the sentence would be informed by the holistic circumstances of the offender and the victim. These statutory reports unveiled a horrifying and systematic backdrop of physical, emotional, and psychological abuse perpetrated by the Appellant against the 4-year-old child. Weighing the contents of these reports against the Appellant's mitigation, the trial court, on 22 August 2022, sentenced the Appellant to serve a custodial term of 25 years imprisonment. 5. Aggrieved by the quantum of this sentence, the Appellant filed the present appeal, primarily contesting the severity of the 25-year term and praying for extreme leniency. Concurrently, the Respondent, utterly dissatisfied with what it perceived as a manifestly inadequate and lenient sentence given the overwhelming aggravating circumstances, filed a formal Notice of Enhancement of Sentence. The Respondent prays that this Court invokes its appellate and revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code to enhance the Appellant's sentence from 25 years to the statutory maximum of life imprisonment. Background 6. The evidentiary record indicates that the minor was rescued following an urgent report made by concerned neighbors to the [Particulars Withheld] Police Post. These neighbours, who resided in the same plot as the Appellant, reported extreme cruelty, noting that the child had horrific wounds on his buttocks and was entirely unable to sit down. Initial assumptions by the neighbours attributed the wounds to severe beatings; however, the subsequent medical report unequivocally confirmed that the wounds were the result of severe burns, compounded by older, healed marks indicating a prior history of being whipped. The Appellant later admitted to the horrifying act of forcing his 4-year-old child to sit on a hot pan as a form of discipline. 7. Even more disturbing than the physical injuries were the subsequent behavioural manifestations exhibited by the minor while under the care of the Shade Children's Foundation. Between May and July 2022, the 4-year-old subject repeatedly demonstrated deeply entrenched, hyper-sexualized behaviour that are entirely anomalous for a child of his tender age. The child was observed attempting to sodomize other toddlers at the facility, instructing them to touch their genitals, and exhibiting a disturbing familiarity with sexual acts. When gently questioned by professional caregivers regarding where he had learned such behaviour, the minor disclosed that the Appellant (his father) frequently removed his pants and sodomized him. The psychological trauma inflicted upon the child was so profound that he developed stress-induced incontinence, involuntarily passing stool in his pants when distressed, fearful, or absent-minded. 8. The Children's Officer identified several core issues in the report, which are critical to the disposition of this appeal and the determination of the appropriate sentence. The subject experienced extreme physical cruelty and torture at the hands of the Appellant. The subject was repeatedly sexually abused by the Appellant, resulting in the child adopting the tragic behaviour of an abuser himself at the age of 4. The minor is highly traumatized, displaying a perpetually deflated body posture and expressing immense fear and panic at the mere mention or sight of the Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2006/eng@2026-02-20 2

page 2 of 9

9. The biological mother of the child, who was traced and interviewed, disclosed that she had fled the matrimonial home a year and a half prior due to severe physical abuse and explicit death threats from the Appellant, establishing a persistent, generalized pattern of extreme domestic violence perpetrated by the Appellant. The Appellant’s Case for Leniency 10. The Appellant’s core grievance, encapsulated in his amended grounds of appeal and his written submissions dated 14 June 2024, rests upon two primary pillars: first, that he is deeply remorseful for his actions, and second, that the sentence of 25 years imprisonment is manifestly harsh, excessive, and vengeful. 11. The Appellant urges this Court to recognize his purported strides toward rehabilitation. He contends that during his 2 years of incarceration at Kamiti Maximum Prison, he has walked the road to redemption, undertaken numerous rehabilitative programs, and evolved into a role model within the penal institution. The Appellant relies heavily on the Judiciary Sentencing Policy Guidelines (2023), specifically highlighting the objective of rehabilitation—the principle that sentencing should enable an offender to reform from a criminal disposition into a law-abiding citizen. 12. Counsel for the Appellant drew the Court's attention to the renowned South African appellate decision in S v. Malgas 2001 (1) SACR 469 (SCA), arguing that an appellate court should interfere with a sentence if the disparity between the trial court's sentence and the sentence the appellate court would impose is so marked as to be described as "shocking" or "disturbingly inappropriate". Furthermore, the Appellant cited the seminal East African Court of Appeal decision in Ogolla s/o Owuor vs. Republic EACA 270, which posited that a court does not alter a sentence unless the trial judge acted upon wrong principles or overlooked material factors. 13. The Appellant vehemently argues that a 25-year term goes beyond his likely natural life span and leans toward sheer retribution rather than restorative justice. Invoking the High Court’s ruling in Yussuf Dahar Arog vs. Republic eKLR, he posits that maximum sentences should account for the ordinary span of human life and the possibility of reformation. Ultimately, he prays for the 25-year sentence to be quashed and substituted with a minimal five-year custodial term. The Respondent’s Case and the Notice of Enhancement 14. The Respondent entirely opposes the appeal, asserting that the sentence imposed by the trial court was not only legal and constitutional but exceptionally lenient given the horrific gravity of the offence. The Respondent asserts that under section 234 of the Penal Code, the offence of grievous harm is a felony carrying a maximum statutory penalty of life imprisonment. 15. To this end, the Respondent formally filed a Notice of Enhancement of Sentence, inviting this Court to invoke its appellate powers to enhance the 25-year sentence to imprisonment for life. 16. The Respondent anchors its cross-appeal on the presence of overwhelming aggravating circumstances that drastically outweigh the Appellant's sole mitigating factor of a guilty plea. The Respondent emphasizes the following key points. First, the victim was a mere 4 years old, entirely defenceless, and completely dependent on the Appellant for his survival, safety, and protection. 17. Second, the perpetrator was the biological father of the victim. The individual vested by law and nature with the ultimate fiduciary duty of care became the architect of the child's physical and psychological destruction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2006/eng@2026-02-20 3

page 3 of 9

18. Third, the physical trauma of being forced to sit on a hot pan was compounded by uncharged but verified serial sexual abuse, resulting in severe psychological trauma, post-traumatic stress disorder, and the tragic, premature sexualization of a toddler. 19. The Respondent argues that the Appellant has failed to demonstrate that the trial court acted on wrong legal principles in imposing a custodial sentence. Conversely, the Respondent submits that the trial court's sentence, while acknowledging the severity of the act, fell significantly short of the necessary deterrence and incapacitation required to protect society—and specifically, vulnerable children—from the Appellant. The Respondent points out that the Appellant's purported remorse is a post-conviction fabrication designed to secure early release, noting that during the trial court's victim assessment meetings, the Appellant displayed a negative demeanour, unmanaged anger, and a distinct lack of genuine remorse. Analysis & Determination 20. Before delving into the substantive merits of the appeal and the cross-appeal for enhancement, it is necessary to establish the parameters of this Court's jurisdiction. As a first appellate court, the duty is to reappraise the evidence and draw independent conclusions, while bearing in mind that the trial court had the advantage of observing the demeanour of the parties involved. This principle was firmly established in the locus classicus case of Okeno v Republic EA 32. 21. However, because the Appellant pleaded guilty, the scope of this appeal is statutorily circumscribed. Under section 348 of the Criminal Procedure Code, an accused person who has been convicted on their own plea of guilt may only appeal against the extent or legality of the sentence, not against the conviction itself. The conviction, therefore, stands undisturbed. The sole mandate of this Court is to interrogate the legality, propriety, and proportionality of the sentence imposed, and to adjudicate the Respondent's application for enhancement under sections 362 and 364 of the Criminal Procedure Code, which grant the High Court revisionary powers to ensure the correctness and legality of any finding or sentence. 22. Having carefully perused the trial court record, the statutory pre-sentencing reports, the Memorandum of Appeal, the Notice of Enhancement, and the rival submissions of both parties, this Court frames the following interrelated issues for determination: a. What are the legal principles governing appellate interference in sentencing decisions, and did the trial court misdirect itself? b. What weight should be attached to the Appellant's plea of guilt and purported remorse against the backdrop of the horrific facts? c. How does the constitutional imperative of the "Best Interests of the Child" and the aggravating factor of a "Breach of Parental Trust" impact the proportionality of the sentence? d. Is the imposition of life imprisonment constitutional in light of recent Supreme Court jurisprudence? Principles of Appellate Interference in Sentencing 23. Sentencing is fundamentally a discretionary exercise vested in the trial court. It is a well-entrenched principle of Kenyan criminal jurisprudence that an appellate court will not lightly interfere with the sentencing discretion of a lower court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2006/eng@2026-02-20 4

page 4 of 9

24. The threshold for such interference is notoriously high. As correctly cited by the Appellant, the guiding doctrine was established over half a century ago in Ogolla s/o Owuor vs. Republic EACA 270, wherein the court enunciated: “ The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors." 25. This holding was further expanded and clarified in Shadrack Kipkoech Kogo v Republic (2003) Criminal Appeal No.253 of 2003 , where the Court noted that an appellate court will only interfere if it is shown that in passing the sentence, the sentencing court took into account an irrelevant factor, applied a wrong principle, or if the sentence itself is manifestly excessive or manifestly inadequate, thereby revealing an inherent error in principle. The appellate court does not possess a roving mandate to substitute the trial court's sentence merely because it would have imposed a different term had it been the court of first instance. 26. Therefore, the dual inquiries before this Court are: Did the trial Magistrate overlook the Appellant's mitigation, resulting in a manifestly excessive sentence as the Appellant claims? Or, conversely, did the trial Magistrate fail to assign adequate weight to the severe aggravating factors, resulting in a sentence that is manifestly inadequate, as argued by the Respondent? The Weight of the Guilty Plea and the Assessment of Remorse 27. The Appellant heavily relies on his plea of guilt as a primary mitigating factor that should warrant a drastic reduction of his sentence to 5 years. A guilty plea is indeed recognized as a mitigating factor. It saves judicial time, spares the State the expense of a protracted trial, and, critically, spares the victim the agonizing ordeal of testifying and reliving the trauma in open court. The Judiciary Sentencing Policy Guidelines (2023) direct judicial officers to consider a guilty plea when determining the quantum of a sentence. 28. The Court of Appeal in Elijah Munene Ndundu & Another v R KLR 163 underscored that an offender's remorsefulness and attitude must be taken into account when determining the suitability of a sentence. 29. However, a plea of guilt is not a mathematical formula that automatically halves a sentence, nor is it a legal magic wand that erases the profound moral blameworthiness of a heinous act. The Court in Omuse vs R (2009) KLR 214 established the vital counter-balancing principle: “ The sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and that the proper exercise of discretion in sentencing requires the court to consider the facts and circumstances of the case in their entirety before settling for any given sentence." 30. In evaluating the Appellant's claim of deep remorse, this Court is guided by the trial court's meticulous record. The trial Magistrate expressly observed the Appellant's demeanour during the pre-sentencing proceedings, which involved the family and the children's officer. The trial Magistrate recorded that the Appellant displayed a "negative demeanour, anger and lack of remorse," and projected an arrogant attitude suggesting that "disciplining ones family is something minor, and the community should not interfere". 31. True remorse is characterized by genuine contrition, an unreserved acknowledgment of the profound harm caused to the victim, and an unconditional acceptance of responsibility. Pleading guilty in the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2006/eng@2026-02-20 5

page 5 of 9

face of overwhelming, incontrovertible evidence—after the victim was rescued by horrified neighbours and hospitalized with catastrophic burn injuries—does not inherently equate to true remorse. The Appellant's initial mitigation that he was merely disciplining his 4-year-old child by burning his buttocks on a hot pan is indicative of a deeply disturbed moral compass, not a remorseful father. 32. Consequently, while the trial court correctly recognized the procedural efficiency of the guilty plea, it appropriately refused to allow that plea to overshadow the extreme moral blameworthiness of the Appellant's actions. The Appellant’s current reliance on post-conviction rehabilitative programs as grounds for a massive sentence reduction is unpersuasive given the calculated cruelty of the original offence. Breach of Parental Trust and the ‘Best Interests of the Child’ 33. To adequately determine the proportionality of the sentence, this Court must rigorously examine the relationship between the offender and the victim. This is not a case of a random assault between strangers; it is an intimate betrayal of the highest order. 34. Article 53(1)(d) of the Constitution guarantees every child the right to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour. Further, Article 53(2) issues an overarching mandate that "A child's best interests are of paramount importance in every matter concerning the child". Section 8 of the Children Act similarly domesticates this principle, ensuring it permeates all judicial and administrative actions concerning children. 35. This constitutional directive is not merely a theoretical guideline reserved for family law custody disputes; it is a foundational pillar that must profoundly influence criminal sentencing when a child is the victim of severe violence. The trial magistrate aptly referenced the Australian High Court decision in Minister for Immigration and Ethnic Affairs v Teoh, which notes that a decision-maker must treat the best interests of the child as a primary consideration, weighing whether any other consideration could possibly outweigh it. In the criminal context, protecting the best interests of a child victim involves ensuring that the perpetrator is adequately incapacitated so as not to pose a further physical or psychological threat, and that the sentence reflects the absolute societal denunciation of child abuse. 36. The aggravating feature of an egregious breach of trust is heavily recognized in domestic and international sentencing jurisprudence. A biological parent owes a fiduciary duty of care, protection, and unconditional love to their offspring. The home is meant to be an inviolable sanctuary. When a father perverts this sacred duty and transforms the home into a torture chamber for a 4-year-old, the breach of trust is absolute. 37. Comparative jurisprudence from the UK Court of Appeal in R v Amina Noor (2024) highlights that offending involving a vulnerable victim within the context of a breach of trust demands a substantial elevation of the starting point for sentencing, as the psychological damage is exponentially magnified by the profound betrayal of the protector. 38. Here, the Appellant weaponized his paternal authority. The victim's extreme youth rendered him entirely physically and emotionally defenceless. The Children's Officer's report noted the child’s deflated posture and the intense trauma manifested simply by the presence or mention of the father. In light of Article 53 of the Constitution, any sentence imposed must adequately reflect the abhorrence with which the Constitution and the people of Kenya view the violation of a child's dignity and bodily integrity by their primary caregiver. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2006/eng@2026-02-20 6

page 6 of 9

The Consideration of Aggregate Behaviour and Uncharged Ofiences 39. A critical, complex element of the Respondent’s argument for enhancement lies in the uncharged but heavily documented sexual abuse detailed in the Children's Officer's report. The report established that the Appellant repeatedly sodomized the toddler, directly causing the child to act out sexually upon admission to the rescue centre. 40. The Appellant was formally charged with, and pleaded guilty only to, Grievous Harm under section 234 of the Penal Code. He was not formally indicted under the Sexual Offences Act. This raises a crucial jurisprudential question: To what extent can a sentencing court rely on uncharged criminal conduct detailed in a pre-sentence report to enhance a sentence? 41. It is a trite constitutional principle that an accused person should not be punished for specific offenses for which they have not been formally charged, tried, and convicted, as this would violate the right to a fair trial and constitute double jeopardy. However, sentencing is a holistic, discretionary endeavour. A pre-sentence report is designed precisely to illuminate the character, background, and specific environmental circumstances of the offender and the offense. 42. The systemic sexual abuse, while not the statutory basis for the conviction, provides the necessary, chilling context regarding the environment of terror the Appellant subjected the child to. It demonstrates that the burning of the child's buttocks on a hot pan was not an isolated, momentary loss of temper, but part of a calculated, continuous reign of physical and sexual terror. As explicitly noted in the ODPP’s A Prosecutor's Guide to Children in the Criminal Justice System, prosecutors must draw the court's attention to aggravating factors, including repeated violent acts, abuse by an authority figure, and the vulnerability of the child. 43. The trial Magistrate did not unlawfully sentence the Appellant for the uncharged offence of defilement; rather, the court correctly utilized the psychological fallout of the total abuse matrix to understand the true gravity of the Grievous Harm charge. The sheer terror inflicted upon the child justified a severe departure from any standard baseline sentence for grievous harm. To ignore the context of the sexual abuse would be to sentence the Appellant in a vacuum, ignoring the realities of the child's suffering. Constitutionality of Life Imprisonment 44. The Appellant subtly invokes the climate of the era, alluding to the evolving jurisprudence surrounding mandatory minimums and life sentences. He aims to persuade this Court that long, indeterminate sentences are inherently unconstitutional, degrading, or vengeful. This argument relies on a pervasive, albeit incorrect, interpretation of the Supreme Court's landmark decision in Francis Karioko Muruatetu & Another v Republic eKLR, which declared the mandatory nature of the death penalty for murder unconstitutional. 45. Following the Muruatetu decision, a wave of appellate litigation saw lower courts striking down mandatory minimum sentences across various statutes and declaring indeterminate life imprisonment unconstitutional. For instance, the Court of Appeal in cases such as Julius Kitsao Manyeso v Republic and Evans Nyamari Ayako v Republic previously commuted life sentences for defilement to term limits of 30 or 40 years, arguing that indeterminate sentences violated human dignity. 46. However, it is vital to firmly restate the law as conclusively settled and clarified by the Supreme Court. In the twin apex decisions of Republic v Julius Kitsao Manyeso (Petition No. E013 of 2024) and Republic v Evans Nyamari Ayako (Petition No. E002 of 2024), the Supreme Court unambiguously https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2006/eng@2026-02-20 7

page 7 of 9

overturned the Court of Appeal’s rulings. The Supreme Court held that life imprisonment—and indeed, mandatory minimums prescribed by statute for sexual and severe offences—remain entirely lawful and constitutional in Kenya. 47. The Supreme Court explicitly clarified that its decision in Muruatetu was narrowly tailored to the mandatory death sentence for murder and did not empower the Judiciary to arbitrarily rewrite statutory maximums, usurp Parliament's legislative authority, or strike down life sentences as unconstitutional. Furthermore, in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR), the Supreme Court reiterated that sterner, statutory sentences ensure that the immense gravity of severe offenses is appropriately reflected and that public trust in the justice system is maintained. 48. Therefore, section 234 of the Penal Code, which unequivocally provides that "Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life", remains valid, binding law. The imposition of life imprisonment is a matter of judicial discretion, reserved for the most egregious manifestations of the offense. The Appellant’s contention that a long or maximum sentence is inherently vengeful or unconstitutional is, therefore, legally baseless and must be rejected. Determination on Enhancement 49. Having dispensed with the constitutional challenge to life imprisonment, I turn to the gravamen of the State's cross-appeal: Should the 25-year sentence be enhanced to life imprisonment? 50. When considering enhancement, an appellate court exercises its revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code. The court must ask whether the sentence imposed by the trial court was manifestly inadequate relative to the facts of the case. 51. To assess this inadequacy, the Court evaluates the sentence against the core objectives of sentencing outlined in the Judiciary Sentencing Policy Guidelines (2023): Retribution, Deterrence, Rehabilitation, Restorative Justice, and Community Protection. 52. In cases of grievous harm under section 234 of the Penal Code, sentences vary depending on the severity of the attack and the relationship between the parties. For instance, in Peter Asiema v Republic eKLR, the Court upheld a 10-year sentence for an unprovoked burning of an adult peer. However, the present case involves a 4-year-old victim, extreme prolonged torture, and a fundamental breach of parental duty. 53. The trial Magistrate, in imposing the 25-year sentence, demonstrated profound empathy for the victim and an understanding of the trauma inflicted. However, the trial court seemed to harbor a philosophical hope that the Appellant would eventually achieve the maturity of the human soul through a term of years. 54. While the trial court's 25-year sentence undoubtedly appears to be severe, we are confronted with a scenario where a 4-year-old child’s fundamental innocence, bodily integrity, and psychological wellbeing were utterly obliterated by his own father. The child was burnt so severely he could not sit, beaten until his skin permanently scarred, and sexually abused to the point of severe psychological regression. 55. If section 234 of the Penal Code reserves life imprisonment for the worst of the worst cases of grievous harm, it is difficult to imagine a set of facts more horrifying, grotesque, and morally bankrupt than those presented here. The extreme vulnerability of the victim, the profound breach of parental trust, the horrifying physical injuries, and the irreversible psychological devastation elevate this crime to the absolute highest echelon of moral blameworthiness. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2006/eng@2026-02-20 8

page 8 of 9

56. I find that the trial court was guided by the right principles in its final calibration of proportionality. Given the horrific aggravating factors, the 25-year sentence is adequate. 57. In the timeless words of the Supreme Court in recent jurisprudence, justice must not only consider the rehabilitation of the offender but must firmly centre the victim, ensuring that the punishment reflects the unmitigated horror of the crime committed. The Appellant abdicated his title as a father the moment he elected to systematically torture his defenceless son. The law must step in to unequivocally shield the child where the parent so catastrophically failed. 58. Consequently, I find that the Appellant’s appeal against his sentence completely lacks merit and borders on an abuse of the judicial process, given the leniency he had already inadvertently enjoyed from the trial court. The Respondent's application for enhancement of the sentence is dismissed. 59. Accordingly, I make the following final orders: i. The Appellant's Appeal against the sentence in Thika Chief Magistrate's Court Criminal Case No. E1544 of 2022 is hereby dismissed. ii. The Notice of Enhancement of Sentence is dismissed. DATED AND DELIVERED AT THIKA THIS 20 DAY OF FEBRUARY 2026. HELENE R. NAMISI JUDGE OF THE HIGH COURT Delivered on virtual platform in the presence of: For the Appellant: Present at Kamiti Maximum Prison For the Respondent: Ms Torosi Court Assistant: Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2006/eng@2026-02-20 9

page 9 of 9