Coa v Republic

c. That the learned trial court erred in law and fact by finding conviction relying on the uncollaborated and inconsistent evidence adduced by the prosecution witnesses. d. That the trial court erred in law and fact by failing to consider that the appellant was not accorded fair trial as per article 50(2) of the Constitution. e. That the learned trial court erred in both matters of law and facts while meted the sentence without according the appellant an opportunity to give his mitigation. Evidence 4. PW1 was the minor. The Appellant was her father. She was staying with the Appellant and her mother. On 5.12.2020, her mother asked her to go collect firewood where the Appellant was slashing. When she went, the Appellant came, held her and put her on the ground. He lifted her skirt to the stomach. He removed her panty. He removed his trouser and lowered his underwear. He lay on top of her. He then inserted his penis into her vagina. It lasted 5 minutes. He warned her not to tell anyone. On 7.12.2020, she went into the same farm with the Appellant. He held her, put her on the ground and had sex again. On 10.12.2020, they again went to the same farm and like the previous times, he put her on the ground and had sex with her. 5. It was her further testimony that in March 2021 she missed her periods. This persisted and her mother took her to Gichira Dispensary. At this point, she tested positive for pregnancy. Her mother asked who made her pregnant and it is when she revealed it was her father, the Appellant. She delivered in September 2021. The DNA results revealed that the Appellant was the father of her child. 6. On cross examination, it was her case that the Appellant had sex with her and warned her against telling anyone. 7. PW2 was EHM. The minor was her daughter born on 18.10.2006. She produced the birth certificate. The Appellant was her husband. PW1 used to stay in Vihiga with her grandmother - PW2’s mother, but joined the Appellant and her in Nyeri in 2018. PW1 was in school. The Appellant could go cutting trees in the farm. An engineer had assigned him to clear the bushes. PW1 could go carry the firewood home. 8. She stated that in 2021, February, PW1 was not receiving her monthly periods and it was established she was pregnant. On inquiry, she said the Appellant had sex with her. This was in April 2021 after pregnancy test confirmed she was pregnant. She referred to the PRC and P3 form. She reported and the Appellant was arrested. On cross examination, it was her case that she was sickly. There was DNA results that implicated him. 9. PW3 was Mary Wanjiku Muraguri, Clinical Officer at Gichira Health Centre. She examined PW1 on 26.4.2021. PW1 had old broken hymen. Pregnancy test was positive approximately 14 weeks. 10. PW4 was Dr. Beatrice Wairimu Mugo. She examined PW1. She produced P3 form. On cross examination, PW1 was initially examined at Gichira Health Centre on 26.4.2021. 11. PW5 was Emily Okuono, Government Analyst. She examined the paternity of an infant. The request memo was accompanied by a court order dated 21.2.2022. The infant was PW1’s child. The Appellant was also presented for buccal swabs. It was established that the Appellant was the biological father of the infant. 12. PW6 was No. 7xxx0 PC Stephen Mathenge of Gatitu Police Station. He was the investigating officer. PW2 accompanied with PW1 made the report on 26.4.2021. He interrogated PW1 and the minor. RC https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7497/eng@2026-05-26 2

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form was presented. The Appellant requested for DNA test which was done. He produced the birth certificate. He arrested the Appellant on 29.4.2021 having probable cause to believe that the Appellant was culpable based on the evidence presented. 13. DW1 also testified. He was the Appellant. He was married to PW2 and they were blessed with 4 children including PW1. He was a Watchman in Thika. His employer assigned him some work at home in Gatitu and allowed him to settle in Gatitu with his family. He was slashing bushes around the land. He never had sex with PW1. PW2 would bring food. On cross examination, he contradicted himself that he was biological father of 3 children. That PW2 said that he is not biological father of PW1. Submissions 14. Neither party filed submissions despite promise to do so. The court asked them to highlight them orally in court. The appellant prayed that we equate the sentence to years, even 6 years. The state submitted that the circumstances require a life sentence. It was said to be a well-deserved sentence. Analysis 15. 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 first hand. 16. The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- 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. 17. 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. 18. This court dealing with the instant appeal is entitled to consider the evidence in the trial court as a whole as being submitted afresh 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:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7497/eng@2026-05-26 3

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19. 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. The issue in this case is whether the prosecution proved its case to the required standards. Most oft quoted English decision of by Viscount Sankey L.C in the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462 pp 481 comes in handy in describing the legal burden of proof in criminal matters, that; “ Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’ 20. In the case of R vs. Lifchus {1997}3 SCR 320 the Supreme court of Canada explained the standard of proof as doth:“ The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty… the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilty beyond reasonable doubt.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7497/eng@2026-05-26 4

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21. The legal burden refers to the burden of proof which remains constant throughout the trial. It is the obligation of a party to establish the facts and contentions necessary to support its case, in this case the prosecutor. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14: “ The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.” 22. The standard of proof required in such cases was addressed by Brennan, J. in the United States Supreme Court decision of In re Winship 397 U.S. 358 (1970), at pages 361–364, where he stated that: “ The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatised by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.” 23. The offence of incest is created under Section 20(1) of the Sexual Offences Act as follows: (1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years: Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person. 24. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7497/eng@2026-05-26 5

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probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’ 25. At the trial, PW1 was the minor. She narrated the account of events that implicated the Appellant. On 5.12.2020, her mother asked her to go collect firewood where the Appellant was slashing. When she went, the Appellant came, held her and put her on the ground. He lifted her skirt to the stomach. He removed her panty. He removed his trouser and lowered his underwear. He lay on top of her. He then inserted his penis into her vagina. It lasted 5 minutes. He warned her not to tell anyone. On 7.12.2020, she went into the same farm with the Appellant. He held her, put her on the ground and had sex again. On 10.12.2020, they again went to the same farm and like the previous times, he put her on the ground and had sex with her. 26. The appeal is essentially on sentence and not conviction. However the appellant did not withdrawal the appeal on conviction though he requested for definite sentence. PW3 and PW4 testified that on medical examination, PW1 had been penetrated. There was a child who resulted from the encounter. The court found that the minor was truthful and the appellant, who was the father was the perpetrator. Medical and scientific evidence placed the appellant as the perpetrator. It is thus unnecessary to go into the question of a single identifying witness as generally understood from the case of R v Turnbull & Others [1976] 3 All ER 549. That decision has been generally accepted and greatly used in our judicial system. The court set out the guidelines to be observed when the evidence of visual identification is relied upon, emphasizing the need for the court to consider the circumstances under which the identification was made. The said court stated as 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 he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made…. 27. However, this being a sexual offence, the evidentiary rules have been modified to better serve the interests of justice and society. In such cases, the critical issue is not the need for a warning on the dangers of relying on a single witness, but rather whether the court has recorded cogent reasons for believing the complainant’s testimony in accordance with Section 124 of the Evidence Act. 28. In the present appeal, PW1’s testimony was clear, consistent, and detailed. She was 15 years old and school going. She gave a coherent account of the events leading to her defilement and remained firm under cross-examination. She knew the appellant well as her father and had ample opportunity to recognize him lying on top of her. This was unfortunate. PW5, the Government Analyst confirmed through DNA test that the Appellant was father of the minor that PW1 delivered in these circumstances. Accordingly, the court is satisfied that PW1 was a credible witness whose testimony could be relied upon without the need for corroboration. The court below was equally satisfied. There was no shadow of doubt in the evidence of PW1. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7497/eng@2026-05-26 6

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29. The court is mindful that the law does not prescribe any particular number of witnesses necessary to prove a fact. What matters is the quality and credibility of the evidence, not the quantity of witnesses called. Section 143 of the Evidence Act (Cap 80 Laws of Kenya) provides as follows:No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact. 30. Evidence tendered by the prosecution was that of recognition. PW1 recognized her father as the assailant. She maintained that she saw the appellant and knew him as her father. This evidence remained not only unrebutted and unchallenged but also admitted. The attempt by the Appellant to suggest in cross examination that PW1 was not his biological child as he had 3 children with PW2 contradicted his own testimony in chief that he had 4 children with PW2. 31. The incident occurred several times during the day at various places. The appellant and the complainant were known to each other as father and daughter. This was not just identification but recognition. In the case of Reuben Taabu Anjononi, Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR), the court of appeal [ Madan, Law & Potter JJ A)] posited as follows: The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported). 32. The appellant was properly known and the evidence to that effect was overwhelming. He was known and recognized by the minor. The question of identifying the appellant as the assailant was proved beyond reasonable doubt. In this case, there is no doubt that the Appellant was known to PW1 by familiarly as her father and the legal parameters were well fulfilled. I am fortified by Section 22 of the Sexual Offences Act as follows: 22. Test of relationship (1) In cases of the offence of incest, brother and sister includes half-brother, half-sister and adoptive brother and adoptive sister and a father includes a half-father and an uncle of the first degree and a mother includes a half-mother and an aunt of the first degree whether through lawful wedlock or not. (2) In this Act— (a) "uncle" means the brother of a person's parent and "aunt" has a corresponding meaning; (b) "nephew" means the child of a person's brother or sister and "niece" has a corresponding meaning; (c) "half-brother" means a brother who shares only one parent with another; (d) "half-sister" means a sister who shares only one parent with another; and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7497/eng@2026-05-26 7

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(e) 33. "adoptive brother" means a brother who is related to another through adoption and "adoptive sister" has a corresponding meaning. (3) An accused person shall be presumed, unless the contrary is proved, to have had knowledge, at the time of the alleged offence, of the relationship existing between him or her and the other party to the incest. (4) In cases where the accused person is a person living with the complainant in the same house or is a parent or guardian of the complainant, the court may give an order removing the accused person from the house until the matter is determined and the court may also give an order classifying such a child as a child in need of care and protection and may give further orders under the Children's Act (Cap. 141). Regarding penetration, as has been above observed, the minor was quite clear that the Appellant, was the one who penetrated her on the 3 occasions in early December 2020. The evidence of the appellant did not displace the cogent evidence of PW1. The medical evidence was to the effect that there was penetration. The PRC and P3 forms showed the minor was penetrated and impregnated. This was corroborated by the paternity test which found the Appellant to be the father of the minor. Without much ado, the gestation period from early December 2020 when PW1 conceived to September 2021 when she delivered was well within the natural time of 9 months which this court takes judicial notice of. It is sad that the appellant was both the father of the minor and the father of the minor’s child, that is, he is both the father and grandfather of the new minor. This was as per Section 20(1) of the Sexual Offences Act which provides as follows: (1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years: Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person. 34. The Respondent proved all the essential ingredients of the offence of incest beyond reasonable doubt and the trial court was correct in convicting the Appellant. 35. The next issue is the appeal on sentence. This has three elements that must be addressed both generally and specifically. On sentence, the principles upon which an appellate Court will act in exercising its discretion to interfere with a sentence imposed by the trial court are now well settled. The Court of Appeal in the case of 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. To this, we would add a third criterion namely, that the sentence is manifestly excessive in view of the circumstances of the case (R - v- Shershowsky (1912) CCA 28TLR 263). See also Omuse - v- R (supra) while in the case of Shadrack Kipkoech Kogo - vs - R., Eldoret Criminal Appeal No.253 of 2003 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7497/eng@2026-05-26 8

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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) 36. The appellant stated that the court erred in imposing a sentence that was excessive. Sentence was addressed in the South African case of S v Malgas (117/2000) [2001] ZASCA 30; [2001] 3 All SA 220 (A); 2001 (2) SA 1222 (SCA); 2001 (1) SACR 469 (SCA) (19 March 2001). In that South African case, the Supreme Court of Appeal of South Africa [Harms, Marais, Cameron JJA Chetty Et Mthiyane AJJA] held as follows: 12. 37. 38. The mental process in which courts engage when considering questions of sentence depends upon the task at hand. Subject of course to any limitations imposed by legislation or binding judicial precedent, a trial court will consider the particular circumstances of the case in the light of the well-known triad of factors relevant to sentence and impose what it considers to be a just and appropriate sentence. A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate court is at large. However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”. It must be emphasised that in the latter situation the appellate court is not at large in the sense in which it is at large in the former. In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned. No such limitation exists in the former situation. The court sentenced the appellant to life imprisonment. The court applied section 20(1) of the Sexual Offences Act. The Appellant defiled his daughter on different occasions and ended up impregnating her. She gave birth to a baby boy. This mark remains permanent in the family tree. Section 26 of the penal code provides for sentencing and in particular on the meaning of liable to. It provides as follows: (1) A sentence of imprisonment for any offence shall be to imprisonment or to imprisonment with hard labour as may be required or permitted by the law under which the offence is punishable. (2) Save as may be expressly provided by the law under which the offence concerned is punishable, a person liable to imprisonment for life or any other period may be sentenced to any shorter term. It is therefore true that the court can and may sentence anything between 20 years and life imprisonment. In this matter, however, the minor was not only defiled by the father at the age of 15, but they also begat a son, who is both a son and brother to the complainant, a son and grandson of the appellant. The permanent trauma that the minor has suffered is irreversible. Her future is shuttered beyond imagination. It is not a situation anyone can wish on any other human being, leave alone a minor. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7497/eng@2026-05-26 9

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39. The age of the minor was found to be 15 years. In this case, both the pleaded and the established age confirm that the victim was a child within the meaning of the Sexual Offences Act, section 20(1), the proviso thereof. 40. Liable to means that a sentence of up to life is on the table as the maximum sentence. In the case of Thomas Mwambu Wenyi v Republic [2017] KECA 756 (KLR), the court of appeal addressed the question of liable to as follows: Sir Henry Webb C.J. in Kichanjele S/O Ndamungu versus Republic (1941) 8 EACA 64 had this to say on the proper construction of the words liable to: The wording used throughout the code is shall be liable to but a consideration of the various sections shows in our judgment, that the use of the words shall be liable to does not import that the sentence mentioned in any particular section in which these words occur is merely a maximum and that the court may impose any lesser sentence below the limit indicated. 41. In the case of M K v Republic [2015] KECA 468 (KLR), the court of appeal [Koome, Mwilu & Otieno-Odek, JJ.A] posited as follows: 18. The first observation to note is that the phrase not less than has not been used in the proviso to Section 20 (1) of the Sexual Offences Act. The inference is that the proviso does not create a minimum sentence. The phraseology and wording in the proviso is that the accused shall be liable to imprisonment for life. 19. What does shall be liable mean in law? The Court of Appeal for East Africa in the case of Opoya -v- Uganda (1967) EA 752 had an opportunity to clarify and explain the words shall be liable on conviction to suffer death. The Court held that in construction of penal laws, the words shall be liable on conviction to suffer death provide a maximum sentence only; and the courts have discretion to impose sentences of death or of imprisonment. The Court cited with approval the dicta in James -v- Young 27 Ch. D. at p.655 where North J. said: But when the words are not ‘shall be forfeited’ but ‘shall be liable to be forfeited’ it seems to me that what was intended was not that there should be an absolute forfeiture, but a liability to forfeiture, which might or might not be enforced. We consider such to be the correct approach to the construction of the words shall be liable on conviction to suffer death: especially when contrasted with the words of s.184 which are shall be sentenced to death. 20. On our part, we contrast the wordings in Section 8 (2) of the Sexual Offences Act with the proviso in Section 20 (1) of the said Act. The contrast will shed light as to whether the sentence in the proviso to Section 20 (1) is minimum and mandatory or otherwise. Section 8 (2) provides that 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. The proviso in Section 20 (1) provides that the accused shall be liable to imprisonment for life. 21. Guided by the decision in Opoya -v- Uganda (1967) EA 752 and the persuasive dicta of North J. in James -v- Young 27 Ch. D. at p.655; we are satisfied that the sentence stipulated in the proviso to Section 20 (1) of the Sexual Offences Act is not a minimum mandatory sentence of life imprisonment. The proviso simply states that the trial court has discretion to mete out a maximum term of life imprisonment. Read in conjunction with the general provision in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7497/eng@2026-05-26 10

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Section 20 (1) we hereby state that the correct interpretation of the proviso in Section 20 (1) is that a person convicted of incest when the female victim is under the age of eighteen years is liable to a term of imprisonment between 10 years and life imprisonment. 22. Based on the foregoing interpretation, we are of the considered view that in the instant case, the learned judge erred in law in holding that the twenty (20) years term of imprisonment meted to the appellant by the trial court was an illegal sentence. We find that the twenty (20) years term of imprisonment was not an illegal sentence and was lawful in the context of the decision in Opoya -v-Uganda (1967) EA 752. It follows that the learned judge erred in correcting and or enhancing the sentence from 20 years to life imprisonment. We reiterate the principles in the case of Ogolla s/o Owuor, (1954) EACA 270 wherein the predecessor of this court stated: The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors. 42. The court below exercised its discretion properly. This is a scenario where there was maximum culpability and maximum harm. The sentence of life imprisonment is proper and is upheld. Therefore, the appeal on conviction and sentence is dismissed. Determination 43. I make the following final orders: a. The appeal on conviction and sentence lacks merit and is consequently dismissed. b. 14 days right of appeal. c. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 26TH DAY OF MAY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Mr. Kihara for the State Appellant present Court Assistant – Martin M. D. KIZITO, J. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7497/eng@2026-05-26 11

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