Simon Kamia Muli v Republic

The prosecution’s case 5. PW1 - the complainant/victim testified that she was 17 years 6 months and identified her Birth Certificate as PMFI-1. She stated that she did not know the Appellant before the incident but had seen him once in their village. She stated that on 08/10/2022 she went to visit her grandmother. She got there at 11.30a.m but she didn't find her and stayed with her classmates and stayed with them until 6.30p.m when she decided to pass through the Appellant’s Kinyozi to pick her phone as it was charging at his Kinyozi. PW1 stated that she did not know the Appellant on a personal level. They had done practice on all the topics of biology but had not done one on reproductive system. PW1 then told the Appellant that they do the practicals. She stated that they went to the Appellant’s house where they did what PW1 saw in the biology book. She testified that she forced the Appellant to do it. They had sex. She climbed on top of the Appellant and they did it for 5 minutes. The Appellant took his testis and inserted it in her vagina. They used a condom. It is the penis the Appellant inserted, she then left. PW1 took her phone but they were arrested by the village elder while still in his house leaving. She was ......The Appellant was charged. The Appellant was Simon. She stated that, “Yes”, she was taken to the hospital where she was treated. She identified the P3 form and the PRC form (PMFI.2 & PMFI.3) 6. On cross examination she stated that the date was 08/08/2022. They came and found the Appellant’s brother. The Appellant came with the Assistant Chief and the Appellant was drunk. The Appellant found her there and the Appellant was with Caleb. She stated that she slept with the Appellant when he came. She repeated that the date they did sex was on 08/08/2022 and they were not found. On the day they were arrested they had not had sex. It was the election date. She stated that she had not lied. 7. In re-examination she maintained that they had sex on 08/08/2022 and that on the date they were arrested they did not have sex. 8. PW2- Samuel Mwanzia testified that he is the Assistant Chief [Particulars Withheld] Sub-location. On 08/10/2022 at 7.20 p.m he received a call from a lady called C who told him one her daughters was missing from morning. She suspected that the child was at Simon Kamia’s home. PW2 left home and called a village manager by the name Harrison to escort him to the Appellant’s home. An uncle of PW1 also followed them. When they got to the Appellant’s home, 20 metres away, they met the Appellant with another man. PW2 informed the Appellant that there was a girl he was looking for and he was the suspect. PW2 told the Appellant to take them to the house but he said he didn’t have the keys. PW2 became suspicious and went to the Appellant’s houses. It is a brick house with a main door and main house. PW2 went and passed the door. It opened and he entered with the Appellant. They kept checking in the open rooms and there was no one. One of the rooms was locked and PW2 suspected and asked the Appellant to open it. The Appellant said there was no one and PW2 forced it open. The other man who was with the Appellant ran away. The room had a bed and a mattress. The girls were sitting on the bed. PW2 used a rod to tie the Appellant and took him to police post and the two girls to Likia police post. At the police station, they were interrogated. Miran Mbati was the other man who escaped. They were put in custody. PW2 went and recorded his statement on 10/10/2022. 9. PW2 identified the Appellant at the dock and stated that he knew him for years as they were from the same village and his home was ½ Km from the Appellant’s. H e had no disputes with the Appellant. 10. On cross examination, PW2 stated that he received a call from the victim’s mum and didn’t know if she was a witness in the case. PW2 did not know if the Appellant had a business. PW2 didn’t know why the girls went to the Appellant’s house. The victim did not tell him if she was hurt. 11. There was no re-examination. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3324/eng@2026-03-11 2

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12. PW3-Harrison Kingoo testified that he was the village Manager and also the village elder of Luloloni village. On 08/10/2022 at 7.00pm, the uncle to the complainant/victim came to his hotel and told him that the Assistant Chief reached me to rescue a girl who had been detained. PW3 went and met the Assistant chief who went to the Appellant’s alleged home with him and the victim’s uncle. PW3 stated that at the gate they met the Appellant and another man. They asked them where they were going and the answered they were going to the market to collect a phone. They turned to take them back to the house. They went to the house and forced him to open, it was locked. The Appellant and the other man said their brother Msanii had locked it. They asked for his contact. PW2 pushed the door and it opened. There was a room locked from inside and power was on. The Appellant said that it was not his room and could not open it, they were surprised. PW2 pushed and broke the door using his leg. They found two girls sitting on the bed. They took the Appellant to the police station and reported. PW3 confirmed he could see Simon, the Appellant at the dock. He stated that the other man ran away. 13. On cross-examination, PW3 stated that they searched the rooms that were in the house. They did not ask the girls if they were hurt/injured or not. He denied saying the girl was defiled in the first paragraph of his statement. He stated that PW2 did not use lots of force just a little pushing. 14. In re-examination, he stated that they asked the Appellant to open the door but they refused. 15. PW4- DR. Julian Mutungi a doctor at Kathiani Level 4 hospital. He testified that he had a P3 form for PW1, the victim for 08/10/2022. On examination, her clothes were clean, no stains. She had a history of defilement at 7.30a.m on 08/10/2022. She was accompanied by a police officer and her parent. Her genitalia was okay but PW4 noted that she had sexual intercourse, had whitish discharge. The hymen was broken; there was no evidence of penetration there. PW4 filled the P3 Form on 09/10/2022. The child said the incident was on 08/10/2022. PW4 examined her after 24 hours. PW1 was treated and given Prep and antibiotics and pain killers. PW4 produced the P3 form-PExt.2, PRC form -PEXt.3, Lab request and report form-PExt.4 Treatment notes-PXet.5, 16. On cross examination, PW4 stated that he had been a doctor for 7 years. Whitish discharge is caused by infections not necessarily STIs. It is candidiasis. He stated that as per the PRC, the last sexual intercourse was on 02/10/2022 which was consensual. There was no evidence of penetration, the victim was sexually active. 17. In re-examination, PW4 clarified that sexually active means that the victim was having sex for a while and on examination there was no recent penetration. 18. PW5-No. 11xxx4 pc Elizabeth Mwende, the Investigation Officer. She testified that she is attached to the gender desk at Kathiani police station. The stated that she was informed that the Appellant was arrested on 08/10/2022 at Lita by the Asst. Chief one Mr. Nzau and a village manager Harrison Kingoo. Together with PC Kirui, they went to Lita Police Post. On 09/10/2022 they found that the Appellant had been incarcerated in police cells with a minor victim aged 17 years. According to the report, it was said that the complainant went missing on 08/10/2022 at 10.00 a.m and later in the evening at 5.00p.m the complainant’s mother C M reported to Mr. Nzali the Asst. Chief who assisted her trace the child to the Appellant’s house. They met the Appellant and one Caleb at the gate while going to the market. They forced them to go back to the home stead and to open the door. The Appellant resisted. The Asst. Chief kicked the door open and on entering he found the complainant in the house with another girl MB. PW5 stated that after looking at the report, she took the Appellant and the complainant to Kathiani police station and thereafter she took the victim to hospital where she was examined and treated. The P3 and PRC forms were filled. It was established that the complainant was defiled. PW5 stated that unfortunately, the complainant stated that on the day they were arrested, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3324/eng@2026-03-11 3

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they had not had sex. Upon further interrogation, she said on 08/10/202, the Appellant had defiled her while she was from school. PW5 produced the complainant’s Birth Certificate as PExt.1. 19. On cross examination, PW5 stated that she was an experienced investigator. She did not visit the scene of crime. She stated that PW1 said she was defiled by the Appellant on 10/08/2022. PW5 stated that the victim said her and the Appellant were intimate friends and insisted to sleep in the cells with the Appellant when he was arrested. That the Appellant was arrested a day after the incident (meaning on 11/08/2022). The stated that the medical report showed that the hymen was broken and the victim was sexually active. PW5 confirmed that the victim’s mother was not called as a witness but she had reported the child missing. 20. There was no re-examination and this marked the close of the prosecution’s case. 21. Upon evaluating the evidence tendered by the prosecution and being satisfied that a prima facie case had been established, the trial court placed the Appellant on his defence. Defence case 22. The Appellant gave sworn evidence. He stated that on 08/10/2022, he woke up and proceeded to his barber shop (Kinyozi) where he does charge phones and batteries. At around 10.00 a.m the victim PW1 and her friends came and gave him a phone to charge. They said they would pick it later. He stayed at the shop until 4.00p.m when his friend Caleb came and asked him if he was going to the football game. He agreed to go with him. He closed his shop and went for the training. He took his boots and went to the field. Thay hanged until 6.30 p.m when he went back to the shop. They passed at Lita market to buy some grocery. Before reaching home around 20 metres, he met the Asst. Chief and a village elder who told him they were looking for something that they suspected was at his home. They went home and he found the main door was closed, He called his brother to get the keys and even gave the Asst. Chief his phone to call but his brother’s phone was off. The Asst. Chief entered the house, searched the whole house. In one room which was locked from inside the lights were on. The Appellant said he did not know who was inside. The Asst. Chief forced the door open. The victim and her friend came outside. They said they had come for their phones. They said they had not found the Appellant and decided to wait for him. The Asst. Chief said their mother had reported that they had been missing. The Appellant stated that he was taken to the police post and the Complainant’s mother came there. They were called the following day and transferred to Kathiani police station where he was charged. 23. On cross examination. The Appellant stated that he had no grudge. That the victim did not say he was her boy friend. The Appellant denied having been with the victim as she alleged. True the victim was removed from their house and the medical report stated the victim was defiled but her statement and evidence were different. 24. The defence case was closed. 25. Upon considering the evidence placed before the trial court, the Appellant was convicted of the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act and sentenced to 15 years imprisonment on 24th December 2024. 26. Being dissatisfied with the decision of the trial court, the Appellant has lodged the instant appeal against both the conviction and sentence. The Appellant’s undated Petition of Appeal raises two grounds of appeal as follows:a. That the learned trial magistrate erred in both fact and law by convicting Menon evidence that didn't meet the minimum threshold to uphold a conviction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3324/eng@2026-03-11 4

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b. 27. That the learned trial magistrate erred in both law and fact by sentencing me to a harsh and excessive sentence. The appeal was canvassed through written submissions. The Appellant’s submissions are dated 23rd July 2025 and his rebuttal submissions are dated 20th October 2025. The Respondent’s submissions are dated 1st July 2025. Analysis and Determination 28. This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by the Court of Appeal case of Okeno – VS – Republic (1972) EA 32 where it was stated as follows: “ An appellant 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. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”. 29. Also, in Peter’s vs Sunday Post (1958) E.A. 424 it was said that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses. 30. In the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India Case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh Vs State of M. P. (2002)4 SCC 85 was cited as follows:“ The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not.” 31. In the case of Mwangi vs Republic [2004] klr 28. It was held as follows: “ Any 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 have the appellate courts own decision on the evidence” 32. Having subjected the evidence to fresh and exhaustive examination, considered the trial court’s judgement, the grounds of appeal and the submissions of the parties, I find the following as issues for determination; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3324/eng@2026-03-11 5

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33. a. Whether the prosecution proved the case beyond reasonable doubt b. Whether the sentence should be reviewed a. Whether the prosecution proved the case beyond reasonable doubt It is trite that all criminal offences require proof beyond reasonable doubt. Lord Denning in Miller vs. Ministry of Pensions (1947) 2 All ER, 372 stated as follows: “ 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 beyond reasonable doubt, but nothing short of that will suffice.” 34. In this case, the Appellant was charged and sentenced for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. 35. The offence of defilement is provided for under Section 8 of the Sexual Offences Act. Section 8(1) provides that: “ A person who commits an act which causes penetration with a child is guilty of an offence termed defilement”. 36. To sustain a conviction for the offense of defilement, the prosecution has to prove three ingredients beyond reasonable doubt. This was set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013. The Court in that case stated: “ The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant”. 37. Therefore, in order for the offence of defilement to be committed, the prosecution must prove each of the above ingredients beyond reasonable doubt. Did the prosecution discharge this task? 38. According to the Appellant the prosecution failed in this undertaking, whereas the Respondent is of a different view. i. Age of victim 39. PW1, the Complainant/victim testified that she was aged 17 years 6 months old. PW5 produced her Birth certificate as PExt.1 showing the complainant was born on 29/11/2005. The defilement is alleged to have occurred on 10/08/2022. The victim was aged 17 years and 2 months old and therefore a child. The ingredient of age was proved as required and the same is not contested by the Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3324/eng@2026-03-11 6

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ii. penetration 40. On the ingredient for proof of penetration, penetration is defined under Section 2 of the Sexual Offences Act as follows: “ The partial or complete insertion of the genital organs of a person into the genital organs of another person.” 41. In regard to a defective Charge Sheet, 1 have considered the charges and their particulars in this case. The Appellant as charged is alleged to have committed the offence on 10/08/2022. This means the Prosecution's entire case/evidence and subsequent defence put forth by the Appellant must be in consonance with this date. 42. I have considered the evidence tendered by the Prosecution witnesses in this case. It is noteworthy that (PW1) the minor herself, stated in examination in chief that on 08/10/2022 she went to visit her grandmother and narrated how later on that day she had sex with the Appellant. On cross examination she changed and stated that the dated was 08/08/2022. In re-examination she repeated and maintained that the incident occurred on 08/08/2022. 43. PW2 who allegedly arrested the Appellant stated that on 08/10/2022 (2 months after the date alleged by PW1) at 7.20 p.m he received a call from a lady called C who told him one of her daughters was missing from morning. PW2 left home and called a village manager by the name Harrison to escort him to the Appellant’s home 44. PW3 stated that on 08/10/2022 at 7.00pm, the uncle to the complainant/victim came to his hotel and told him that the Assistant Chief reached him to rescue a girl who had been detained. This is contrary to the Asst. Chief’s testimony that he called the village elder. 45. PW4, DR. Julian Mutungi a doctor at Kathiani Level 4 hospital. He testified that he had a P3 form for PW1, the victim for 08/10/2022. On examination, her clothes were clean, no stains. She had a history of defilement at 7.30a.m on 08/10/2022. 46. PW4 stated that the victim’s genitalia were okay but he noted that she had sexual intercourse, had whitish discharge. The hymen was broken; there was no evidence of penetration there. PW4 filled the P3 Form on 09/10/2022, (almost two months from the alleged date of incident on 10/08/2022). That the child said the incident was on 08/10/2022. PW4 examined her after 24 hours. PW1 was treated and given Prep and antibiotics and pain killers. PW4 produced the P3 form-PExt.2, PRC form -PEXt.3, Lab request and report form-PExt.4 Treatment notes-PXet.5. 47. PW5 stated that she did not visit the scene of crime. She stated that PW1 said she was defiled by the Appellant on 10/08/2022. PW5 stated that the victim said her and the Appellant were intimate friends and insisted to sleep in the cells with the Appellant when he was arrested. That the Appellant was arrested a day after the incident, meaning he was arrested on 11/08/2022 whereas PW2 and PW3 testified that the Appellant was arrested on 08/10/2022. PW5 stated that the medical report showed that the hymen was broken and the victim was sexually active. 48. None of the Prosecution’s witnesses mentioned the alleged incident to have occurred on 10th day of August 2022 as stated on the charge sheet and no application for amendment of the date was sought for. The question for this Court's determination is whether the variance of the Prosecution evidence and the dates indicated on the charge sheet renders the charge defective. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3324/eng@2026-03-11 7

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49. The Supreme Court explained the particulars that a charge should disclose in Isaac Omambia v R [1995] eKLR as follows:“ ln this regard, it is pertinent to draw attention to the following provisions of S.134 of the Criminal Procedure Code which makes particulars of a charge an integral part of the charge; Every charge or information shall contain, and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence." 50. The particulars of a charge can therefore render a charge defective. I draw guidance from the Court of Appeal in Yongo v R [1983] eKLR where the learned Judges held that a charge can be defective if the evidence adduced in its support is at variance with the offence disclosed in the charge or its particulars. They stated thus: “ In England it has been said: An indictment is defective not only when it is bad on the face of it, but also: i. When it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed therein; ii. when for such reason it does not accord with the evidence given at the trial. " (emphasis added) (See also Archbold, Criminal Pleading, Evidence and Practice (40th Edn), page 52 paragraph 53.) 51. 1t is my finding that the variance between the dates on the charge sheet and the Prosecution evidence rendered the charge in question defective. 52. In addition, the testimony of the complainant/victim to prove the ingredient of penetration is critical. PW1 testimony point to two dates on which she was allegedly defiled i.e. 08/08/2022 and 08/10/2022, which is which? 53. PW2 stated that he didn’t know why the girls went to the Appellant’s house. The victim did not tell him if she was hurt. 54. PW4 stated that the victim’s genitalia were okay but he noted that she had sexual intercourse, had whitish discharge. The hymen was broken; there was no evidence of penetration there. PW4 filled the P3 Form on 09/10/2022, (almost two months from the alleged date of incident on 10/08/2022). That the child said the incident was on 08/10/2022. PW4 examined her after 24 hours. 55. From the doctor’s evidence there was no evidence of penetration upon examining the victim 24 hours after the incident. 56. If at all there was no indication that the victim was hurt or in pain, why were her treatment notes showing she was given pain killers? https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3324/eng@2026-03-11 8

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57. In David Mwingirwa vs. Republic [2017] eKLR the Court of Appeal considered High Court's decision to uphold the trial court's conviction for incest on the basis that the complainant's hymen had been broken and held that: “ From that reasoning of the learned judge, it would seem that the certainty or confidence with which she asserted that there was overwhelming evidence of LK having engaged in sexual activity came in no small measure from what she considers the corroboration afforded by the evidence of PW4 on the broken hymen. According to the learned judge, PW4 was of the view that "there was continuous process of defilement. " With respect, we do not think that this was entirely correct. The Clinical Officer PW4 noticed that nor was there spermatozoa or any male emission in her vaginal carnal. He merely stated that the broken hymen was suggestive of an ongoing process of defilement. He did not suggest that his said conclusion was based on any other observation beyond the broken hymen. Then this brings to the fore the issue raised by the appellant whether, in the absence of any other medical or physical evidence, a broken hymen is conclusive proof of penetrative sexual intercourse as PW4 seemed to suggest (his remarks in the P3 and his testimony in Court do not go beyond a suggestion) and as the learned judge seemed to have concluded, we think it was an error for the learned judge to form a firm conclusion of defilement from the fact alone of the broken hymen. " 58. It is to be observed that the medical documents do not show any signs of penetration despite the victim being seen within 24 hours of the occurrence of the alleged offence. 59. How about inconsistencies and contradictions on the penetration herein? There were quite a number though the Respondent dismissed them as inconsequential. In cases where the court has to prefer the evidence of one person against the other, for instance between the accused and the complainant and that is the only evidence, the court must approach such evidence with a degree of circumspection, particularly in sexual offences that are normally committed in secrecy with hardly any eye witness. Contradictions and inconsistencies therefore matter in deciding who to believe. The contradictions have to be considered and weighed carefully. In this case there were a number of such contradictions and inconsistencies that have been alluded to by the Appellant in his written submissions including the contradiction in the date of the alleged defilement and when he was arrested. 60. The doctor was crystal clear that whatever he examined never indicated the penetration of the victim. The dates that the complainant alluded to about her penetration was very contradictive comparing to what the doctor examined, all these exposed the victim’s untrustworthiness. The complainant averred that the penetration took place on 8/10/2022 only once in the Appellant’s room where she herself forced the Appellant to have sex with her and she got on top of the Appellant. Again, she confuses herself that it was on 8/8/2022 when they were not caught. In the circumstances, if at all penetration happened, which date's penetration was the doctor examining? In any event the Doctor opined that the victim was sexually active and this cannot be said to be only once as she alleged. 61. In as much as the trial court believed the testimony of the complainant, there was no strict compliance with the requirements of the proviso to section 124 of the Evidence Act aforesaid. It is quite clear that there was doubt as to whether the complainant was actually defiled by the Appellant as alleged and only once contrary to the doctor’s opinion that she was sexually active since there was no credible evidence as to the penetration of the complainant by the Appellant as charged. It is trite that those doubts should have been resolved in favour of the Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3324/eng@2026-03-11 9

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62. The evidence on penetration was not corroborated and unsafe for the trial court to have relied upon to conclude that there was penetration and proof of defilement against the Appellant as charged . iii. Positive identiffcation of the assailant 63. The ingredient of penetration above having not been proved, then automatically, proof of positive identification of the Appellant as the assailant equally failed. 64. Before I pen off, I wish to point out that this court has observed that the prosecution did not say anything or explain what happened to the other girl who was found with the PW1, the victim. Further, whereas, the Appellant was being arrested for allegedly defiling the child herein in contravention of the law, I note that the same child was equally incarcerated in police cells with the Appellant on 09/10/2022 as confirmed by PW5 and PW2 who stated that Miran Mbati was the other man who escaped. They were put in custody that is the Appellant and the minor victim. To me, this equally amounted to violation of the minor victim’s rights and totally contravened the provisions of Article 53(f)(ii) of the Constitution. 65. Consequently, this court finds that the evidence on the trial court’s record failed to meet the required standard of proof in criminal cases. The essential ingredients of defilement were not proved beyond a reasonable doubt. b. Whether the sentence should be reviewed 66. The Appellant was sentenced to serve 20 years imprisonment. The Appellant in mitigation prayed for leniency, a chance to help the community because of his skills, that he was a young man and still desired to have a family. The prosecution informed the court that the Appellant was a first offender and had no previous records. 67. Section 8(1) are read with Section 8(4) of the Sexual Offences Act provides that: (l) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (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. 68. The minor was 17 years of age. The law provides that upon conviction; the imprisonment should be for a term not less than 15 years. 69. In Republic v Joshua Gichuki Mwangi SC Petition No. E018 of 2023, the Supreme Court of Kenya held that the minimum sentences in the Sexual Offences Act were constitutional and the courts are bound by the minimum mandatory sentences as provided for by law. Looking at the circumstances of this case, the sentence was legal and proper as prescribed by law. 70. Had I upheld the Appeal, I would have affirmed the Sentence as was imposed by the trial court. 71. The upshot is that this appeal succeeds. The conviction is quashed. The sentence of twenty years is set aside. The Appellant is forthwith set at liberty unconditionally unless otherwise lawfully held. 72. Orders accordingly. The file is closed. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 11TH MARCH 2026 NOEL I. ADAGI https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3324/eng@2026-03-11 10

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JUDGE DELIVERED AT MACHAKOS THIS 11TH DAY OF MARCH 2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3324/eng@2026-03-11 11

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