Nzuki Kathila v Republic

5. PW 1 Dr. Kakundi Blastus a medical superintendent at Kibwezi Hospital with a degree in BSC from University of Nairobi a 12 years’ experience as a doctor produced the P3 Form dated 22nd August,2022 in respect of the minor JK aged 12 years filed by Dr. Juma Mbiu who had been moved to Tawa Hospital. 6. He testified that according to the P3 the girl was aged 12 years and the report made was that of defilement by one known to her between the 12th June, 2022 and 19th June, 2022. She had changed clothes. She gave a history of penile penetration by a person known to her on the 12th June, 2022 and 19th June, 2022 at her parents’ place Kalamba. That on physical examination, defilement was noted as the hymen was broken but not fresh. The genitals were normal and laboratory examination showed she was not pregnant nor HIV, urine tests were all negative for STDs. 7. He said that the report was signed and stamped and that the approximate age of injury was three weeks. That the weapon used was male genitalia. He produced the P3 Form dated 28th June, 2022 by Dr. Mbiu as Pexhibit 1 and also a PRC form dated 27th June, 2022 whose contents were are similar to those in the P3 as Pexhibit 2, the lab request form and results where the findings as per the P3 Form as Pexhibit 3. 8. PW 2 the complainant testified on oath after voire dire examination revealed that she was intelligent and understood the nature of an oath. 9. She told the court that she was living in Kibwezi and going to [Particulars Withheld] Primary School where she was in grade 7. That her father was EM and her father one A.. She said that she was born on 21st July, 2010 and she was able to recognize her birth certificate in court. She testified that on 12th June, 2022 at about 4p.m she was at home washing the house, and her brother E was at home. No one else was there. That the Appellant came with a bicycle which he gave to her brother E. E rode the bicycle to the road. That is when the appellant ordered her to get inside he into E ‘s house : There were two other houses her mother’s and her grandmother’s. 10. He ordered her to get into the bed and remove her skirt and blouse and that he removed her panty and slept on her while she faced up. That he then removed his penis from his clothes and inserted into her vagina, finished returned his penis into the trouser then left. She testified that she felt a lot of pain during the process and the appellant did not listen when she protested though she did not scream. That the appellant told her that if she disclosed the incident, he would beat her. 11. She testified that the appellant did not put on a condom and she noticed that her vagina and thigh had semen. She put on her clothes and appellant told her to go and shower then he left as his brother arrived. She did not report the incident as she feared to be beaten and that this was her first time. 12. That on 19th June, 2022 at 3:00P.m, she was at home arranging clothes when the Appellant arrived again, gave his brother a bicycle and ordered her to go to his brother’s house. She said that the Appellant ordered her to get into the bed, she feared but the Appellant forced her to the wall by pushing her. He removed her dress up to the waist, he then removed her panty and inserted his penis again into her vagina. She said that one M who is her cousin arrived at time the appellant was holding her. The door was locked and that M called her to get out and it was in the process when M arrived and that the appellant had already released sperms into her thighs and that when her cousin called, she put on her panty fast then went outside. 13. She said that M left after that and the appellant left too and since her brother was still riding the bicycle, the appellant waited for him at the gate. She said that she again showered and continued to arrange clothes and that the appellant gave her 20/= the 2nd time and again another 20/= but did not tell her what the money was for and she refused to take. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6477/eng@2026-05-08 2

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14. She testified that Muthoki informed her mother that she had found Nzuki defiling her and that on the evening of 27th June, 2022 her mum usually went to work at Kalama where she is a saloonist. That she would leave home at 7:00a.m and return at 6:00p.m. 15. She testified that after her mum got the report she informed her father. She was taken to Kibwezi police station and the appellant was brought by her father, she was taken to hospital at Makindu where she was seen by the doctor and was given medication. She said that she has known the appellant for long and even knew where he lived at Kivuthini.. She said that she got to know him when he was working as a herder at a neighbour’s place. She said that she did not tell her brother anything She positively identified the accused in court. 16. PW3 J M testified that she lived at Kibwezi. That she was a student at [Particulars Withheld]. Secondary School and a candidate at the material time. She said that on the 19th June, 2022, at 3P.M, she was from church and was going to the neighbours place to borrow charcoal. She decided to pass by Pw2 which is her aunt's place. She found the appellant there and PW2 was working. She went to the neighbour’s and on her way back there was no one outside. She knocked on the doors nobody responded to the house, but shortly Pw2 came out of the house of the brother looking shocked. She inquired what had happened but she didn't say anything and she suspected something. She said that the door to the room was locked from inside, she then entered the room where appellant was hiding behind the door. That she then kept quiet and asked Pw2 what she had done but did not talk to the appellant. She told pw2 she would report the incident while Pw2 requested her not to report. 17. She said that the appellant knew she had seen him since the incident happened during the day in the house which was one room which had enough lighting. She said she left immediately though she was not comfortable. She said that she waited for Pw2 to reveal to her parents and then she informed Pw2s mother and that she informed her mother first and requested them to investigate what the appellant was doing. 18. She testified that she made the report on 26th June, 2022 where thereafter the police were informed. That her mum informed mother to Pw2 on the 27th June, 2022. The appellant Nzuki was then arrested and they went to Kibwezi where she recorded her statement and this was after Pw2 had revealed that the incident happened. 19. She said that she saw the brother of Pw2 on the road riding a bicycle which bicycle belonged to the appellant That the boy called her brother and that appellant Nzuki usually helped around since he is an employee at the neighbours where he has operated a mill at the area for long. She said that Pw2 did not tell her anything but she was the one who became suspicious and reported the incident. 20. Pw4 EM was mother to PW2. she testified that she lived at Kibwezi and worked as a Saloonist at the market at Kalama. That on the 26th June, 2022 she was at home when Muthoki came and inquired if Pw2 had told her anything and she said no. She said that Pw3 informed her that there was something happening between the appellant and Pw2, she narrated to her what had happened on 19th June, 2022, 21. She testified that after getting the report she waited for Pw2 to come from school. She testified that she beat PW2 who disclosed that the appellant had defiled her on 12th June, 2022 and on 19 th June, 2022 while he gave E his bicycle to ride. 22. She said that after getting the report, she informed the father then they got the appellant Nzuki and took him to Kibwezi Police Station and the girl was taken to be seen by the doctor where the doctor confirmed that the girl had been defiled and this was at Kibwezi hospital. That Nzuki denied the offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6477/eng@2026-05-08 3

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23. She said that she had not noticed any difference from her daughter and that the girl is aged 12 years as confirmed by her birth certificate. She produced it as P.Exhibit 4. She said that she knew Nzuki for about 7 years and that she had no grudge with him. 24. PW5 No.24xxx3 P.C Bifatha Kachuki, a Police Officer stationed at Kibwezi Police Station on general investigations testified that he was the Investigating Officer in the case. He that on 27th June, 2022 at 6.00 pm, he was the duty Officer when one person the appellant was brought by members of public on allegations that he had defiled a minor Pw2. 25. He rearrested him and escorted the child to hospital then issued P3form. That he in company of female officer PC Lilian Munee. That the girl was brought and upon interrogating her, she disclosed that she had been defiled twice on the 12th June, 2022 and 19th June, 2022. That the Doctor informed him that there was evidence of penetration and the girl was seen at Kibwezi hospital (Makindu). The appellant was charged witness statements were recorded. 26. He testified that the girl narrated the incident, how the incident had happened. 27. He said that he was given birth certificate Pexhibit 4 and he confirmed the girl was underage at 12years. He did not visit the scene already the victim and accused had been brought, and a week had passed. He confirmed that he did not know the accused before then and was able to identify the accused in court. 28. The prosecution closed its case. 29. Vide a Ruling delivered on the 17 th November, 2022 the trial court, satisfied that prosecution had established a Prima facie case placed the appellant on his defence on the main count. 30. The appellant testified and called 4 witnesses. 31. He gave an unsworn testimony. He told the court that he lived at Kivuthini where he worked at a posho mill. He stated that the evidence presented was a lie and that he was removed from his work place, was beaten and taken to the Police Station and did not know the reason why. 32. Dw2 Brian Mwanzia testified that he lived at Kalama where he worked as a casual. He said he knew the appellant as an employee of his family operating their posho mill. That on the material day he was arrested he was herding livestock by two men. These men assaulted him. He said he Dw2 went to report to his parents. He said that it was alleged that the appellant had defiled a child, he said that that was not true. 33. Dw3 Johna Kisambo testified that he was a business man living in Kibwezi and knew the appellant as his employee. He stated that he was called to his posho mill where he found that the appellant had been arrested and left his sheep in the farm. That he was informed that the appellant had been tied with a rope by the complainant's father. He said that he did not know why he had been arrested and taken to the Police Station. 34. Dw3 Magret Kalewa John testified that the appellant was their employee who worked at their posho mill and all general work. She testified that the appellant was grazing her livestock in evening, she was called by her aunt, who informed her that the appellant was being assaulted. She said that she found he had been assaulted and was informed that there was a girl who had accused home of defiling her. 35. Dw5 Kasina Kathila, testified that he lived in Kibwezi and worked for DWA company the appellant was his brother. That he was not present when his brother was arrested and he was not a to the defilement case https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6477/eng@2026-05-08 4

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36. The trial court through its judgment delivered on the 20th December,2022 found the appellant guilty of defilement contrary to section 8(1) as read with Section 8(3) of the Sexual Offences Act and convicted him. On 16th February,2023 the appellant was sentenced to 15 years imprisonment. 37. The Appellant aggrieved and dissatisfied with the conviction and sentence filed this appeal on the following grounds:a. That he pleaded not guilty to the charges. b. That the trial magistrate grossly erred in law and facts in relying on suspicious and fictitious evidence of PW1 without noting that PW1 was subjected to duress thus incriminating the appellant. c. That the trial magistrate erred in law and facts in relying on hearsay evidence adduced by prosecution witnesses and failed to note that the charges against the appellant were born out of malice and ill-will. d. That the trial magistrate erred in law and facts in convicting on mere allegations and presumptions and holding the testimonies of the prosecution witnesses as truthful and free from doubt without the benefit of properly conducted DNA required under section 2 of the Sexual offences Act to ascertain whether or not the accused was linked with the commission of the alleged offence. e. That the trial magistrate gravely erred in law and in facts in finding the Appellant guilty as charged in absence of corresponding medical evidence of sexual activeness on the part of the Appellant. f. That the learned trial magistrate failed to test the evidence of prosecution witnesses and caution the circumspection thereby convicting on flimsy, inconsistent and evidence that was not water tight enough and lacked probative values to justify a conviction. g. That the trial court erred in law and fact without observing that there were no substantive investigations by the investigations officer thereby basing the conviction on mere allegations and fabrication. No eyewitness testimony that a person was seen fleeing from the scene of crime and no fingerprints nor anything found linking the appellant with the commission of the alleged offence. h. That the trial magistrate erred in law and fact by not finding that the evidence of the complainant as adduced in court and also the long period or delay in not reporting the incidence in reasonable times raised sufficient doubt as to occurrence of the incident and the doubt should have been resolved in appellant's favour. i. That the trial court erred in law and facts by shifting the burden of proof to the appellant; in that it is trite law that an accused person should only be convicted on the strength of the prosecution evidence and not on the weakness of his defense. j. That, the trial magistrate erred in law and facts by failing to find that the prosecution had not proved its case beyond any reasonable doubt as required by law and also failed to scrutinize and evaluate the prosecution evidence therefore arriving at an erroneous decision. k. That the sentence imposed upon the Appellant was harsh and excessive based on the circumstances and contravened the provisions of Article 47 of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6477/eng@2026-05-08 5

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38. The Appellant sought that his appeal be allowed the conviction be quashed, the sentence be set aside and he be set free in the interest of justice. SUBMISSIONS 39. The appellant submits that the trial court erred in law and facts in relying on suspicious and fictitious evidence. The Appellant contends that the trial court relied on hearsay evidence without noting that the complainant was subjected to duress thus incriminating the appellant. That the evidence adduced before court by prosecution witnesses was prejudicial to the appellant and the charges were born out of malice and ill-will. 40. He submits that is trite law that the burden of proof always rests on prosecution thus it was not his duty to prove his innocence. That in order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused and incapable of any other explanation other. 41. The appellant submits that the trial court ought to have asked for (DNA) required under section 2 of the S.O.A to ascertain whether or not the appellant was linked with the commission of the offence as there was no corresponding medical evidence of sexual activeness on the part of the appellant. 42. The appellant submits that there was no material evidence recovered from the appellant that could support the prosecution evidence that the appellant committed the offence. That there was no corroboration of the evidence and the circumstances of the offence remained little known. That the court relied on hearsay evidence that kept on expanding 43. That the evidence adduced was prejudicial to the appellant and "such evidence was monumental hotchpotch and a prevarication of lies which is quite hard to separate the truth from untruth or who is to be believed rather than the other". 44. That the evidence adduced by the 1.O was insufficient, fabricated and lacked probative value to justify a conviction. 45. That there was no evidence of any strangulation nor any injury the complainant had sustained on her body or genital organs and the medical evidence adduced does not support the claim by the prosecution witnesses. 46. The appellant submits that the trial court failed to test the evidence of prosecution witnesses therefore convicting on flimsy, inconsistent and evidence that was not water tight sustain a conviction. 47. The appellant submits that the evidence adduced by prosecution was insufficient. That to give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). That the accused is entitled to benefit of doubt not a matter of grace and concession, but as a matter of right. 48. The appellant submits that the trial court shifted the burden of proof by not observing there were no substantive investigation. 49. That during cross-examination, PW2 stated that she was feeling pain in her genital organs on the contrary, the medical practitioner noted that there were no tears, no evidence of forceful penetration and finally no evidence of healing wounds or lacerations was ever found on PW2'S genitalia. The Appellant relies on Benard Kyalo Mayoli vs Rep. Cr. App. No 138 of 2017 in support of his arguments. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6477/eng@2026-05-08 6

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50. The Appellant argues that wrongful convictions have terrible and irreparable impact on the innocent defendant sent to prison. That the phenomenon of wrongful conviction has broad implications. The Appellant places reliance on J.O. vs Republic[2015] eKLR, it was held that; “ Whereas a court of law is always called upon to make decisions or inferences on some set of circumstances, such court should Endeavour to make such decisions or inferences on the basis of available evidence as adduced before it and it ought to be slow in making assumptions not supported by facts as tendered before court." 51. He also relies on Bukenya & Others Vs Uganda {1972} EA 549. 52. The appellant urges the court to be persuaded by the above arguments and to find in his favour; to reanalyze and re-evaluate the entire evidence and find that it was unsafe to convict the appellant. 53. The Respondent on its part submits that this Appeal raises five issues for determination: i. Whether there was penetration ii. Whether the Appellant was the perpetrator iii. Whether there were notable inconsistencies in the testimonies of the witnesses iv. Whether the ingredients of defilement were established v. Whether the sentence meted out to the Appellant was safe 54. On whether there was penetration, it is submitted that the complainant testified that the Appellant penetrated her on two occasions and on the first incident, threatened her not to disclose the same otherwise she would be beaten. She also testified that the appellant on the second occasion attempted to give her Kshs. 20 twice but she refused to take it. That PW1 also testified that on examination the complainant had a broken hymen and the age of the injury was estimated at three weeks. 55. It is submitted that the evidence of the complainant that she was penetrated by the Appellant on two occasions in the brother's room is sufficient to prove penetration; that the evidence of the medical evidence was corroborative and in support of the evidence of penetration, that DNA analysis was not applicable to this matter as the matter was reported about three weeks after the first incident and no samples were recovered for DNA analysis. 56. It is submitted that pursuant to section 124 of the Evidence Act, no corroboration is necessary in criminal cases involving a sexual offence. Reliance is placed on Joseph Mwangi v Republic [2015] eKLR and G O A v Republic [2018] eKLR where the court was of the view that a court of law can convict solely on the evidence of the victim. 57. The prosecution also relies on Ali Mohamed Ibrahim v Republic [2017] eKLR where the prosecution did not produce a blood stained underwear that had been worn by the victim at the time of penetration, and the court nevertheless proceeded to hold that there was penetration that in this case there was penetration and the trial court properly directed itself in finding that indeed there was penetration. 58. On whether the Appellant was the perpetrator, it was submitted that the victim was able to identify the Appellant by name and by recognition. That she testified that she had known him for long and even knew where he lived and worked, he was working at the neighbor's therefore there was no doubt that the Appellant was positively identified. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6477/eng@2026-05-08 7

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59. On the second incident the appellant was found by PW3 who also knew him well and she testified that he operated a posho mill and had been working in the area for long. It was submitted that the appellant was clearly identified by the complainant and also an eye witness. 60. On whether there were notable inconsistencies in the testimonies of the witnesses, it is submitted that the testimonies of the witnesses considered together point to the fact that there was penetration of the victim who was a minor and that the Appellant was the perpetrator. The court is urged to reject the Appellant's assertion that there are inconsistencies in the evidence of the prosecution's witnesses. Reliance is placed on Ali Mohamed Ibrahim v Republic [supra] where the court was called to determine a similar issue. 61. It is submitted that courts have in the past held that even in instances where inconsistencies are identified in the evidence, for the court to reject such evidence, such inconsistencies ought to be significant and sufficient to paint a picture of untruthfulness. For this proposition reliance is placed on Erick Onyango Ondeng' v Republic [2014] eKLR where it was held that there was need to establish significant inconsistencies in the evidence of witnesses for the court to reject such evidence. 62. It is submitted that the evidence adduced by the prosecution's witnesses was coherent and consistent therefore its veracity and probative value unimpeachable. 63. On whether the ingredients of defilement were established, it is submitted that the court in Lukas Muli Nzioka v Republic [2019] eKLR itemized the ingredient of defilement as penetration, the victim is a minor and the perpetrator is positively identified. It is submitted that the ingredients of defilement were undoubtedly established 64. On the issue of the sentence: that the sentence was legal, proper and safe. That according to the SOA the offence of defilement of a victim of between 12 and 15 years attracts a sentence of not less than twenty years imprisonment. That the court exercised it judicial discretion within the purview of the law. 65. That the trial court exercised its discretion judiciously in arriving at the sentence this court is urged not to disturb or interfere with the sentence. 66. It is submitted that the Appellant has failed to establish that he deserves the reliefs sought in the Petition of Appeal and the court is urged dismiss the Appeal. Analysis and Determination 67. This is a first appellate court. As expected, I am required to analyse and evaluate afresh all the evidence adduced before the trial court. See Okeno vs. Republic [1972] EA 32 where the Court of Appeal set out the duties of a first appellate court as follows: “ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. R. (1957) EA. 570). 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 finding and conclusion; it must make its own findings and draw its own 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, see Peters vs. Sunday Post [1958] E.A 424, Pandya -vs- Republic [1957] EA 336 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6477/eng@2026-05-08 8

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68. 69. This position was taken by the the Court of Appeal in Kiilu & Another vs. Republic [2005]1 KLR 174, 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. See also Sylvester Wanjau Kariuki vs. Republic [2016] eKLR, where the court cited the decision of the Supreme Court of India in K. Anbazhagan vs. State of Karnataka and Others Criminal Appeal No. 637 of 2015:“ The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely...The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal is to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.” 70. The elements constituting the offence of defilement are proof of penetration, the age of the minor and the identity of the assailant (See C.W.K v Republic [2015] eKLR). 71. Section 8(1) of the Sexual Offences Act provides as follows: “ 8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) …. (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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6477/eng@2026-05-08 9

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72. The first ingredient in proving the offence of defilement is penetration. Penetration is defined under Section 2 of the Sexual Offences Act as follows: “ The partial or complete insertion of the genital organ of a person into the genital organs of another person.” 73. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration. 74. The complainant in her testimony described to the court the two incidents of the 12th June, 2022 and 19th June, 2022. The complainant vividly described how the appellant defiled her. PW 3 testified how she found the Appellant hiding behind the door in the room belonging to the complainant’s brother and that the complainant was outside looking confused. 75. The testimony of the doctor confirmed the age of the complainant and that she went to hospital with a complaint of defilement by a person known to her between 12th June, 2022 and 19th June, 2022. She gave a history of penile penetration by a person known to her and on examination defilement was confirmed from the broken hymen. 76. This evidence considered in its totality proves that there was penetration. 77. The second ingredient of the offence of defilement is proof of age of the victim. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic [2016] eKLR stated as follows in respect of proving the age of a victim in cases of defilement: “ ... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 78. The complainant testified that at the material time she was a grade 7 pupil and was born on the 21st July, 2010. She positively identified her birth certificate which showed she was born on 21st July, 2010. PW 4 the mother of the complainant testified that the complainant was 12 years. From the foregoing it is clear that the issue of age was proved to the required standard. 79. Regarding the identity of the perpetrator, he was not a stranger to the complainant or PW3. They were neighbours for a long time. 80. The appellants position is that he was arrested while grazing livestock. 81. He complained that his defence was not considered by the trial court. His defence did not dislodge the evidence of the witnesses that on the material dates he was at the home of the complainant and committed the said offence. His witnesses testified to his arrest and none was aware of where he was on those two dates. 82. I note from the judgment that the learned magistrate considered the defence and drew its own conclusions from it. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6477/eng@2026-05-08 10

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83. The Appellant’s other ground of appeal is that the sentence meted on him was harsh and excessive. The principles applicable in considering whether to interfere with the sentence of a trial court on appeal were enunciated in the case of Mbogo & Another vs. Shah (1968) 1 E.A. 93 thus:“ …a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.” 84. The Court of Appeal in Ogolla s/o Owuor vs. Republic, [1954] EACA 270, pronounced itself on this issue as follows:“ The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.” 85. The other principle to be considered is whether the sentence is manifestly excessive in view of the circumstances of the case see Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 where the Court of Appeal stated thus:“ Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka – vs- R. (1989 KLR 306).” 86. And in Bernard Kimani Gacheru vs. Republic [2002] eKLR the Court of Appeal restated that: “ 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 states is shown to exist.” 87. The Appellant argues that the sentence imposed was harsh and excessive and unconstitutional in the circumstances. 88. In this case, the offence in which the Appellant was convicted of is the offence of defilement contrary to section 8(1) as read with Section 8(3) of the Sexual offences Act No. 3 of 2006. Section 8(3) of the Sexual offences Act provides that, “ 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’ https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6477/eng@2026-05-08 11

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89. Under Sexual Offences Act, sentence for defilement is prescribed based on the age of the victim of the sexual assault the younger the victim, the more severe the sentence the age of the victim of sexual offence is considered an aggravating factor whose impact is ingrained in the law when it comes to sentencing. 90. In the circumstances the trial court considered the fact that the Appellant was a first offender, he also considered the circumstances of both the victim and the appellant and noted that the offence required a stiff punishment. In this regard, I am satisfied that due consideration was made in safeguarding the interests of the victim, the Appellant and the community at large. I would agree with the prosecution that the sentence was proper. 91. The conviction is sustained. 92. On Sentence the appellant was in custody all the while from the date of arrest. I did not see in the sentence ruling that the trial court had stated that it had taken into consideration that period. His sentence will therefor run from 27th June 2022. 93. Other than that, the appeal is without merit. 94. The appeal is dismissed. JUDGMENT, DATED SIGNED AND DELIVERED VIRTUALLY ON 8TH MAY 2026 MUMBUA T MATHEKA JUDGE CA Chrispol Appellant present For the State: Ms. Musango Signed by/for: LADY JUSTICE MATHEKA, TERESIA MUMBUA https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6477/eng@2026-05-08 12

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