Anthony Kioko Mutuku v Republic

6. The appellant was aggrieved with both his conviction and sentence and proffered an appeal to this court vide a petition of appeal dated 15th October, 2024. 7. In the petition of appeal, the appellant faulted the trial court for failing to find that the prosecution failed to prove that he touched the genital organ of the alleged complainants as required by law; for failing to find that he was not properly identified as the perpetrator of the offence; for failing to find that the witnesses in this case were incredible witnesses, whose evidence could not be used to base a conviction; and for convicting him based on the complainant’s single evidence without giving the reason for believing in the said complainant’s testimony. 8. This court on 28th of April, 2025, directed that the hearing of this appeal proceeds by way of written submissions. In his written submissions dated 30th April, 2025, the appellant abandoned his appeal on conviction and chose to argue his appeal on sentence only. 9. The appellant submitted that, by sentencing him to serve a term of fifteen (15) years imprisonment, the learned trial magistrate failed to adhere to the minimum sentence prescribed under section 11(1) of the Sexual Offences Act, thereby contravening Article 50(2)(p) of the Constitution, which guarantees the right to the benefit of the least severe punishment prescribed for an offence. 10. He further submitted that, by failing to impose the minimum sentence of ten (10) years imprisonment as provided under section 11(1) of the Sexual Offences Act, the learned trial magistrate violated his rights under Articles 27(1) and (2) of the Constitution. 11. The appellant also contended that the learned trial magistrate contravened the provisions of section 14(3) of the Criminal Procedure Code by failing to order that the sentences imposed on the three counts run concurrently, rather than consecutively, despite the offences having been tried in a single trial. 12. The respondent, in its written submissions dated 8th September 2025, submitted that section 11(1) of the Sexual Offences Act prescribes a minimum mandatory sentence for the offence, rather than a maximum sentence. As such, the court retains the discretion to impose a higher sentence commensurate with the gravity of the offence and any aggravating circumstances. 13. The respondent contended that, in sentencing the appellant to fifteen (15) years imprisonment on each count, the learned trial magistrate took into account several relevant factors, and therefore, the sentence imposed was not excessive. 14. The respondent further submitted that the appellant’s reliance on Article 50(2)(p) of the Constitution is misplaced, as the prescribed punishment under section 11(1) of the Sexual Offences Act has consistently been imprisonment for a term of not less than ten (10) years. 15. The respondent also submitted that the order directing the sentences to run consecutively was lawful and justified, as section 14(1) of the Criminal Procedure Code grants the court discretion to order sentences to run either concurrently or consecutively. 16. It was the respondent’s position that the trial court properly exercised its discretion by ordering the sentences in counts I and II to run concurrently, while directing that the sentence in count III run consecutively. In doing so, the court acknowledged the connection between the first two counts while recognizing the distinct nature of the third count. 17. Given that this is an appeal against sentence only, it is settled law that sentencing is a matter that rests with the discretion of the trial court, and that an appellate court will only interfere with this discretion, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5763/eng@2026-04-30 2

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when it can be shown that the sentence imposed was illegal or that it was manifestly excessive, or that the trial court, while sentencing, acted on wrong principles, or overlooked some material factors. 18. This principle was restated in the Court of Appeal case of Mulwa versus Republic (Criminal Appeal 109 of 2022) [2023] KECA 693 (KLR) where the court stated as follows: “ Sentencing is a discretion of the trial Court. It is also a matter of fact. The second appellate Court cannot interfere with that exercise of discretion unless it is shown that the Court passed an illegal sentence.” 19. Similarly, the Court of Appeal in Bernard Kimani Gacheru versus Republic (2002) eKLR reiterated this principle as follows: “ It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.” 20. That said, the appellant in this case was convicted on three counts of the offence of committing an indecent act with a child, contrary to section 11(1) of the Sexual Offences Act. Under that provision, any person found guilty of the said offence is liable to imprisonment for a term of not less than ten (10) years. 21. Section 11(1) therefore prescribes the minimum sentence that may be imposed for the offence. It follows that a trial court retains the discretion to impose a more severe sentence than the prescribed minimum, depending on the circumstances of each case. 22. In the present case, the learned trial magistrate sentenced the appellant to fifteen (15) years imprisonment on each count. The record shows that, in arriving at this sentence, the trial court considered the pre-sentence report, which was unfavorable to the appellant, the impact of the offences on the victims, and the circumstances under which the offences were committed. However, there is no indication on record that the learned trial magistrate considered any mitigating factors before sentencing the appellant. 23. I have taken into account that the appellant was a first offender. I have also considered that the offences were committed against multiple victims, who were vulnerable members of society. They were children, the eldest being eleven (11) years old, who were most likely orphaned or abandoned, as majority of them resided in a children’s home. Further, the offences were committed by a person who was expected to protect these vulnerable individuals, but instead abused that position of trust. 24. In the circumstances, it is evident that the aggravating factors in this case far outweighed the mitigating factors. I am therefore satisfied that a sentence of fifteen (15) years imprisonment was not excessive, but was appropriate and justified given the circumstances of the case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5763/eng@2026-04-30 3

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25. Regarding his argument that the learned trial magistrate violated his rights under Article 50 (2) (p) of the Constitution, the said provision of the Constitution stipulates as follows: “ Every accused person has the right to a fair trial, which includes the right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.” 26. My interpretation of the above provision of the Constitution, is that an offender, or an accused person, has a right to the benefit of the least severe of the prescribed punishment for an offence, where the sentence or punishment for the offence has changed between the time that the accused committed the said offence and the time the sentence was imposed. 27. The court in John Kariuki Kamoto versus Republic [2020] KEHC 1950 (KLR) stated as follows: “ …...while Article 50(2)(P) is on the benefit to the least severe of the prescribed punishment for an offence but this only becomes applicable if the prescribed punishment for the offence has changed between the time the offence was committed and the time the sentence was imposed, which is not the case herein.” 28. It is evident that the provisions of Article 50(2)(p) of the Constitution are inapplicable in the present case. This is because the punishment prescribed for the offence of committing an indecent act with a child under section 11(1) of the Sexual Offences Act has not changed. The penalty has consistently remained imprisonment for a term of not less than ten (10) years. 29. In view of the foregoing, it is clear that the learned trial magistrate did not contravene the provisions of Article 50(2)(p), nor Articles 27(1) and (2) of the Constitution, as alleged by the appellant. The sentence imposed was therefore lawful, justified, and within the confines of the law. 30. The appellant further contended that, pursuant to section 14(1) of the Criminal Procedure Code, the learned trial magistrate ought to have directed that the sentences imposed on each count run concurrently rather than consecutively. 31. Section 14 (1) of the Criminal Procedure Code states as follows: “ Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefore which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.” 32. It is therefore evident that the decision as to whether sentences should run consecutively or concurrently lies within the discretion of the court. In the instant case, the trial court ordered that the sentences in Counts I and II run concurrently, and that those sentences run consecutively to the sentence imposed in Count III. 33. I therefore find that the trial court properly exercised its discretion in making that order. This is because the offences in Counts I and II arose from the same transaction, whereas the offence in Count III arose from a separate and distinct transaction. The learned trial magistrate cannot therefore be faulted for the order made in that regard. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5763/eng@2026-04-30 4

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34. However, I have noted that while sentencing the accused, the learned trial magistrate did not factor in the period that the appellant spent in custody prior to his sentencing, in contravention of section 333 (2) of the Criminal Procedure code. 35. Section 333 (2) of the Criminal Procedure Code states as follows: “ Subject to the provisions of section 38 of the Penal Code (Cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.” 36. The Court of Appeal, in Kazungu v Republic, (2024) KECA 635 (KLR) expressed itself as follows regarding the provision of section 333 (2) of the Criminal Procedure Code: “ The foregoing provision makes it clear that the period during which an accused has been held in custody prior to being sentenced must be taken into account in meting out the sentence. Unless the trial court, in sentencing the accused states and sets out the effect of that period on the sentences meted, the legal implication of the provision to section 333(2) of the Criminal Procedure Code is that the period spent in custody forms part of the eventual sentence.” 37. Upon perusing the record of the trial court, it is evident that the appellant was arrested on 22nd July 2022 and subsequently presented before the court for plea taking on 25th July 2022. Upon pleading not guilty to the charges, he was admitted to bond in the sum of Kshs. 700,000 with one surety of a similar amount. However, there is no indication on record that he was able to meet the bond terms, and he therefore remained in custody until his sentencing on 2nd October 2024. 38. The appellant was thus in custody for a period of approximately two (2) years and two (2) months prior to sentencing. There is no indication that the learned trial magistrate took this period into account during sentencing, which ought to have been done. 39. Having found that the sentence imposed by the learned trial magistrate was lawful, justified, and within the confines of the law, and is hereby upheld. 40. Final Orders: i. The sentences imposed by the learned trial magistrate in all the three counts are hereby upheld, including the order that the sentences in Counts I and II shall run concurrently, and that those sentences shall run consecutively to the sentence imposed in Count III. ii. The period of two (2) years and two (2) months spent in custody prior to sentencing shall be taken into account. DATED, SIGNED AND DELIVERED VIRTUALLY ON 30TH DAY APRIL, 2026. HON. T. W. OUYA, OGW JUDGE In the presence of: Torosi for Respondent Appellant in person virtually at Kamiti Maximum Prison https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5763/eng@2026-04-30 5

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Nyabuto/Hamza – Court Assistants https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5763/eng@2026-04-30 6

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