Boo v Republic

a. The learned trial magistrate erred in failing to adhere to the provisions of article 50(2) (h) of the Constitution. b. The learned trial magistrate erred in law and fact in failing to consider that the ingredients of the crime were not proved beyond a reasonable doubt. c. The learned trial magistrate erred in law and fact in refusing to consider the defence and mitigation of the Appellant. Evidence 6. The court carried out voir dire. Being 15 years old, this was unnecessary. The court found at the voir dire level that the witness was candid and truthful. This was not the basis for voire dire. It is meant to establish whether a minor of tender years is possessed of sufficient intelligence and understands the meaning of oath. Truthfulness is only to be at the point of testimony. In Yusuf Sabwani Opicho v Republic [2009] KECA 171 (KLR), the Court of Appeal posited as follows: The procedure for investigation, or preliminary examination of a witness, otherwise referred to in old French and Anglo-Norman as the “voire dire” or “voir dire” is taken in two steps as summarized in Kinyua v. Republic [2002] 1 KLR 256:“ (a) The court should first ascertain whether the child understands the nature of an oath. An investigation to this effect must be done by the court immediately the child witness appears in court. The investigation need not be a long one but it has to be done and it has to be directed to the particular question whether the child understands the nature of an oath. If upon investigation it appears that the child understands the nature of the oath, then the court proceeds to swear or affirm the child and to take his or her evidence. (b) If the child does not understand the nature of the oath, he or she is not necessarily disqualified from giving evidence. The court may still receive the evidence if it is satisfied, upon investigation, that the young person is possessed of sufficient intelligence and understands the duty of speaking the truth. This investigation must be done and when done, it must appear on record. Where the court is so satisfied then the court will proceed to record unsworn evidence from the child witness.” Further in John Muiruri v. R [1983] KLR 445 this Court re-emphasized, inter alia, that:“ 2. It is important to set out the questions and answers when deciding whether a child of tender years understands the nature of an oath so that the appellate court is able to decide whether this important matter was rightly decided. 3. When dealing with the taking of an oath by a child of tender years, the inquiry as to the child’s ability to understand the solemnity of the oath and the nature of it must be recorded, so that the cause the court took is clearly understood. 6. The judge is under a duty to record the terms in which he was persuaded and satisfied that the child understood the nature of oath. The failure to do so is fatal to the conviction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2635/eng@2026-03-02 2

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9. The correct procedure for the court to follow is to record the examination of the child witness as to the sufficiency of her intelligence to satisfy the reception of evidence and understanding of the duty to tell the truth.” 7. Therefore, the questions in voir dire are not geared towards truth and candidness. In any case, the questions did not meet the threshold for checking the meaning of the oath and testing intelligence. However, given her age, there was no effect whether voir dire was done or not. 8. At trial, PW1, the minor, testified that she was in grade 7. She was 15 years old, born on 2.9.2009. She remembered that on 18.3.2025 at around 7:00 am, her mother sent her to the shop to buy sugar. On her way to the shop, she met the Appellant at a nearby shop. She did not know the Appellant before this day. The Appellant pushed her into the bush. She wore a full dress. The Appellant pulled her dress up and pushed her onto the ground. He removed her innerwear. He removed his trousers. He had no underwear. He slept on top of her. He took his dudu and inserted in her vagina. He inserted his fingers in her mouth. He took off after, and she dressed up. During the testimony, she broke down. 9. The minor then went to her aunt, MO, and informed her of what had happened. Together with the aunt, she went home and found her father, as her mother had gone to the farm. They went to the Hospital. They also reported to Oyani Masai Police Station. It happened at 9.00 a.m. She was in her menses when he defiled her. The appellant was unknown to her at the time of the incident. She was also not around when the appellant was arrested. 10. On cross-examination, it was her case that the bush was near the road. She screamed, but there was no one around. He inserted his fingers into her mouth. 11. PW2, MOO, who was the minor’s mother, testified that she sent PW1 on 18.3.2025 around 9:00 a.m. to buy sugar. The Appellant attacked and pulled her and defiled her. The minor could not tell the name of the Appellant, but she recognized him. On cross-examination, she testified that there were people who saw the Appellant following PW1. They described the Appellant's dress. 12. PW3 was Evans Mati, the Clinical Officer. He stood in for Joseph Oyira, who was away. He examined the minor on 18.3.2025; the mouth was swollen and tender. The external genitalia were normal. She was on her menses. The hymen was not intact, though not freshly broken. The vagina was tender and swollen. The age of injury was 6 hours. 13. On cross-examination, he stated that there were no bruises, but it was not all sexual intercourse that causes bruises. The minor was said to be on her menses. PW3 indicated that the findings were normal. 14. PW4 was MAO. She knew PW1 as her child. The Appellant was not known to her before this incident. She was on her way back from her farm when she met PW1, who was accompanied by two women. PW1 was crying and could not talk. On cross-examination, PW1 had bruises on her legs, and the two women took her home. It is not clear why PW2 testified twice as PW2 and PW4. 15. PW5 was No. 12xxx, Tabitha Wanjiku of Awendo Police Station. The Appellant was arrested by officers through the guidance of the Assistant Chief, Mr. Ezekiel Kokeyo. No identification parade was done. The victim identified the Appellant as Benard. She visited the crime scene. 16. She recalled that on 22.03.2023, the appellant was arrested on the guidance of the assistant chief Ezekiel Kokeyo, and they picked him from Awendo police station. 17. The Appellant testified as DW1. He was a mechanic. On 18.3.2025, PW1’s father called him. The Appellant had arrived from Nairobi. PW1’s father came to his home, and he wanted to lease part of the Appellant’s farm. He refused. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2635/eng@2026-03-02 3

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18. After two days, he saw goats eating cassava in the farm and called PW1’s sister. PW1 came and untethered the goats. PW1 told him that he was boasting about his property. He took a stick to beat up PW1. Her father saw him and warned him that he would be taken to Migori. Three days later, he received a call to go to Kitere for wiring. He left for his sister’s house to spend the night. At 3 am, there was a loud bang on the roof. Days later, he was arrested and taken to Ranen Police Station. 19. On cross-examination, it was his case that PW1 was known to him as a neighbor for 9 years. He did not inflict injuries on PW1. He did not defile her. He had no issues with her. Submissions 20. The Appellant filed submissions dated 4.11.2025. It was submitted that the Appellant was not recognized beyond reasonable doubt. He cited Benard Gitonga Karanu v Republic (2019) eKLR. 21. It was also submitted that penetration was not proved beyond reasonable doubt. He cited PKW v REP (2012) eKLR. He also submitted that age was not proved beyond reasonable doubt and reliance was placed on Mutua v Republic (2018) eKLR. 22. The Appellant also submitted that his defence was not considered. Analysis 23. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. This was settled by the former Court of Appeal for Eastern Africa in Pandya v Republic [1957] EA 336, as follows: “ On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 24. Therefore, this Court will not interfere with the exercise of judicial discretion by the court below unless it is satisfied that its decision is clearly wrong. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated: “ …that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2635/eng@2026-03-02 4

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25. 26. The Appellant was charged with defilement contrary to Section 8(1) & (3) of the Sexual Offences Act No. 3 of 2006. PW1 was said to be 15 years old. I reproduce Section 8 (1)-(4) of the Sexual Offences Act as follows: (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) 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. (3) 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. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. It is trite that this court, dealing with the instant appeal, is entitled to consider the evidence in the trial court as a whole as being submitted fresh to be subjected to exhaustive examination to guide the court towards its own decision on the evidence. In Kiilu & Another vs. Republic [2005]1 KLR 174, the Court of Appeal stated as follows:1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. 2. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses. 27. The issue for this court’s determination is whether the prosecution proved the offence of defilement against the Appellant beyond a reasonable doubt. 28. Proof beyond reasonable doubt does not impose a standard of proof beyond the shadow of a doubt. Where the evidence tendered is so strong as to leave only a remote possibility in favour of the accused person, which can be dismissed with the sentence “of course it is possible, but not in the least probable”, then it can be said in law that the case is proved beyond reasonable doubt. It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as doth: “ What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2635/eng@2026-03-02 5

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29. The parameters that were to be proved in cases such as the instant case were settled in the case of George Opondo Olunga vs Republic [2016] eKLR that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and proof of the identification of the perpetrator. 30. At trial, PW1, the minor testified that the Appellant who was trailing her from behind pulled her into a nearby bush. He threw her onto the ground and put his fingers into her mouth. He also inserted his (penis) dudu into her vagina. He escaped after the act. 31. On identification, PW1 testified that she did not know the Appellant before. She recognized him at the time of the incidence. PW2 testified that the Appellant was not known to her and she knew him after he was arrested. the Appellant submitted that the single identifying witness was inadequate. PW1 did not describe him at all. According to him, the identifying circumstances were difficult as the bushes must have obscured correct identification. 32. In the case of Abdulla Bin Wendo & Another vs Republic [1953] 20 EACA166, the Court there addressed the manner in which the evidence of a single identifying witness should be treated and stated thus: Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known the conditions favouring a correct identification were difficult. 33. The court had to assess the probability of error. In this case, it was not stated the witness who actually identified the Appellant for the purpose of the arrest. PW1 was not present at the time of the arrest. PW5, testified that the Appellant was arrested by police officers from Ranen police post under the guidance of Assistant Chief, Ezekiel Okeyo. It was in Kiilu & Another V. Republic [2005] 1 KLR 174 that the Court of Appeal held “ Subject to certain well-known exceptions, it is trite law that a fact may be proved by testimony of a single witness, but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances, what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the probability of error. 34. It is clear that identification in this case was not by recognition. PW1, PW2 and PW4 all testified that they came to know the Appellant after the incident. In R –vs- Turnbull & Others (1973) 3 ALL ER 549, a decision generally accepted and widely used in our judicial system, the Court considered the factors to be considered when the only evidence turns on identification by a single witness. The Court stated doth: The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way...? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? how long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2635/eng@2026-03-02 6

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he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made…. 35. Only the assistant chief and the police officers from Ranen Police Post could testify on how they identified the Appellant as a person suspected to be the offender. This is because PW1, the only identifying witness, was not in their company, and she provided no description of how the Appellant looked. It was suspicious how the police landed on the Appellant after the assistant chief bluntly pointed him out to them. Where the Appellant was arrested was not disclosed, nor how he was arrested. 36. The Appellant raised the general defence of mistaken identity. In the case of Peter Njogu Ndege v Republic [2016] KECA 676 (KLR), the Court of Appeal stated thus: “ The risk of mistaken identity and the ensuing misjustice is of course greater when the only identification evidence is that of a single witness, who is, moreover, the subject of a sudden and violent attack and not a calm, unstressed observer. It is for this reason that courts must approach such sole identification evidence with a commonsensical amount of caution, which should manifest in a more searching scrutiny of the evidence so as to eliminate any possibility that the witness may be mistaken. The court should also warn itself of the danger inherent in relying on the evidence of a sole identifying witness before using it as a basis for convicting a suspect and then only if fully satisfied beyond reasonable doubt that the identification was error-proof. See RORIA –VS- REPUBLIC [1967] EA 583 and WAMUNGA –VS- REPUBLIC [1989] KLR 424." 37. I have said enough to demonstrate that identification was not proved to the required standard. 38. On the aspect of age, age is such a crucial component in sexual offences that it points to the extent of punishment for the offenders. This was also the position of the court in Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR), where the Court of Appeal stated as doth: “ Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 39. Consequently, age herein was proved by the production of the Birth Certificate. The birth was registered on 31.1.2022. The Birth Certificate stated that PW1 was born on 2.9.2009 and so was 15 years. The Appellant’s case on this was that age was not proved since PW3 stated that PW1 was 16 years. PW1, according to the Appellant was 15 years and 6 months old and ought to be considered as 16 years. I decline the proposition by the Appellant as the Birth Certificate clearly showed that PW1 was born on 2.9.2009 and therefore was 15 years old on 18.3.2025. There was no doubt as to entertain approximations. 1. 41. On penetration, there was PW1, PW3, the medical evidence, and there was circumstantial evidence that could be produced. PW3 testified that there was evidence of penetration. The mouth was swollen and tender, and the external genitalia were normal. There was fresh blood in the vagina as PW1 was on her menses. He described the vagina as tender and swollen, and in the PRC Form, it was noted that epithelial cells and nonmobile spermatozoa were seen. The Respondent proved penetration. The only issue remaining is whether the appellant was the aggressor. I shall postpone this and deal with the aspect raised in the first ground. If the issue is dismissed, then the court will deal with the question of identification. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2635/eng@2026-03-02 7

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The question raised was that the court did not provide an advocate, given that substantial injustice was likely to occur. I have perused the proceedings and was shocked to note that PW2 and PW4 are one and the same person. There is no reason why one person was allowed to testify twice. The court cannot understand how one person testified twice. Considering the nature of the cross-examination, the appellant was unable to represent himself. Article 50(2)(h) of the Constitution provides as follows: “ (2) Every accused person has the right to a fair trial, which includes the right- (a) ... (h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.” 42. Though the court indicated that the appellant was entitled to legal representation and to apply to the legal aid board for assistance. This was not in compliance with the law. The appellant was not told that the service is free. The right had to be explained, and, as a result, one witness was allowed to testify twice. In this case, I find and hold that the proceedings were incoherent and, as a result, substantial injustice actually resulted. The right was not promptly communicated. 43. In any case, whether or not the appellant was informed of the right, the court had a duty to inform the appellant when a witness was recalled. The next question is whether the court will order a retrial or discharge. In the case of ZAO v Republic [2025] KEHC 18694 (KLR), the high court stated as follows: 44. 42. Despite everything else, the appellant has not gone through the system. The offence is a serious one. The appellant had only been in custody for two years. He has a lifetime ahead. There is no possibility of witnesses being unavailable for a retrial. In Ivan v Republic [2025] KEHC 16973 (KLR), Noel I. Adagi J, reaffirmed the principles governing the ordering of a retrial as set out in Fetahali Manyi v Republic (1964) EA 481. In that her decision, the Court emphasized that the setting aside of a conviction does not automatically justify an order for retrial, even where the error that vitiated the sentence is attributable to the trial court rather than to the prosecution. Instead, each case must be determined on its own peculiar facts and circumstances. The Court underscored that a retrial should only be ordered where the interests of justice so demand. Conversely, a retrial ought not to be directed where it is likely to occasion injustice or undue prejudice to the accused person. The guiding consideration, therefore, is the balancing of the interests of justice against the potential hardship to the accused, bearing in mind the overall fairness of the criminal process. 43. In the circumstances of this case, there is no justification for declining to order a retrial. Defilement cases are largely document-driven, and the relevant documentary evidence remains in the custody of the Office of the Director of Public Prosecutions. The Appellant shall therefore be presented before the trial court for a fresh hearing before a court of competent jurisdiction other than hon. P.K. Mutai for hearing and determination of the case. the accused must then be informed of his right to counsel and an advocate appointed from him. in case he cannot afford one. This court, having found that there was penetration and the defence evidence was weak, the only two reasons for setting aside the sentence are due to mistakes of the court. The first is that serious injustice resulted from a lack of representation. The next issue is that a witness was recalled and testified as PW2 and PW4 without an order to recall the witness. The prosecution's evidence is not idle, though there were issues on the third limb which I have declined to deal with to avoid embarrassing a trial court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2635/eng@2026-03-02 8

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45. The court is satisfied that there was a mistrial. The matter shall be remitted to the court below to be heard by a court other than Hon S.N. Mutava. The court shall ensure that an advocate is appointed to represent the appellant at the state's expense. In the circumstances, the conviction and sentence are set aside. 46. The court then has to deal with the issue of sentence. The nature of sentences under the Sexual Offenses Act is circumscribed. This particular offence under section 8(1) and (2) of the Sexual Offences Act provides for a mandatory sentence of life imprisonment. The question of such sentences was addressed in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [supra] where the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] posited as follows: 47. 11. Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed 12. Before Kenyan courts could determine whether or not the prevailing trends and decisions were persuasive, there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. That was the Supreme Court’s approach and direction in Muruatetu , which had to remain binding to all courts below. 13. The Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. That approach was problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below. Further, the same position was reiterated by the supreme court in its decision in Republic v Manyeso [2025] KESC 16 (KLR), where is stated as follows: Paragraphs 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act, or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution. Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence: 94. We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2635/eng@2026-03-02 9

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to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature. 48. 95. We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism. 96. We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing. 65. From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts. The appellant was charged with an offence whose sentence was 15 years, since the appellant was 16 years. The court did not consider the sentence provided or invite mitigation or a pre-sentence report. The court sentenced the appellant to 40 years without assigning any reason. Therefore, the 40-year sentence was excessive in the absence of any aggravating factors. The same is set aside. The proper sentence was 20 years if the accused was 15. The 40-year sentence is excessive in any case. Determination 49. I make the following final orders: a. This appeal succeeds, and the conviction is quashed. The lower court case Rongo MCC CSO No. E008 of 2025 is remitted for a retrial before a court other than Hon S. N. Mutava. b. The sentence is set aside as being excessive. c. The lower court filed a mention on 10.3.2026 for directions on the hearing and appointment of a pro bono advocate. d. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 2ND DAY OF MARCH, 2026. Judgment delivered through Microsoft Teams Online Platform. KIZITO MAGARE JUDGE In the presence of: Mr. Kihara for ODPP Appellant present PC Ondimu from Kisumu Maximum https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2635/eng@2026-03-02 10

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SSgt. Peter Oduor translating Court Assistant – Michael M. D. KIZITO, J. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2635/eng@2026-03-02 11

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