Paul Otieno Juma v Republic

5. That the sentence meted out was overly harsh, excessive and inordinate in spite of him being a first offender. 6. That he begs to adduce more grounds once supplied with the lower court records. Reasons wherefore he prayed that this appeal be allowed, conviction quashed and sentence set aside or any other order deemed fit be granted. 4. The Prosecution’s case was supported by the evidence of 5 witnesses who testified as follows: - 5. PW1 SAO the Complainant and a Grade 8 student at [Particulars Withheld] Primary School testified that the Appellant was her boyfriend and the father to her child whom she had brought with her to the court. She stated that they met with the Appellant at [Particulars Withheld] Trading Centre and he seduced her and she accepted the same. She said that they spoke and the Appellant took her to his uncle’s kiosk where he worked and they had sex in the kiosk and thereafter the Appellant gave her money. It was her testimony that she removed her clothes and the Appellant also undressed and inserted his penis into her vagina and that no one saw them and that she had never done the same with any other person. PW1 testified that her mother did not know and only found out when she was pregnant and when she gave birth, she revealed that it was the Appellant and he was arrested. She stated that her father took her to Awendo Sub- County Hospital for examination and treatment and she was issued with a Treatment Card, P3 Form, an Age Assessment Report and Post Rape Care Form which she produced as PMFI 1-4. 6. PW2 KOJ the father to PW1 testified that she was his first born and that he was surprised when she gave birth at home. He narrated that as she was going to school, she grew huge and he realized that something was wrong but he could not tell that she was pregnant. That he was woken up that the Complainant was in labour and they took her to the hospital where she delivered. He testified that the Complainant went back to school thereafter and revealed to them that Paul impregnated her. PW2 informed the Chief and the Appellant was arrested and he accepted that the child was his. That the girl and the Appellant were both taken to Awendo Sub-County hospital and examined and the girl issued with a treatment book. 7. PW3 Lilian Okeyo the Clinical Officer testified that she examined and treated the Complainant on 5/10/2021. That upon examination, she found that the Complainant’s external genitalia was normal, the hymen was not present and that upon carrying out lab tests on her urine it was revealed that she had a UTI infection. She stated that she concluded that there was defilement as well as penetration as there was evidence of the baby born on 20/8/2021. She stated that the age of PW1 was assessed as 15 years and the same recorded in the Age Assessment Form. She also stated that she examined and treated the Appellant as well. PW3 produced the Treatment Card, P3 Form, Age Assessment Form, & PRC Form for the Complainant as ExP 1-4 all dated 5/10/2021. The Treatment book & P3 Form for the Appellant were also produced as Ex P5 & 6 of even date. 8. PW4 Paul Odhiambo Opucho the Chief of West Sakwa Location testified that on 4/10/2021 he was at work in [Particulars Withheld] Village in Rabondo Sub-location in the office of the Assistant Chief when a village elder named Odhiambo brought the Appellant who was arrested on allegations of defiling SAO. He stated that the elder had OB Number showing a report had been made against the Appellant and he escorted him to Dede Police Station from where he was taken to Awendo Police Station. PW4 also instructed the village elder to take the Complainant to the Police Station. 9. PW5 PC Caroline Kemunto attached to Awendo Police Station stated that on 5/10/2021 the Complainant’s father took her to the said station on allegations of being impregnated by Paul Juma in December 2020. That on the same day the Appellant who was the suspect had already been arrested by https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8341/eng@2026-03-19 2

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the area Chief and was in custody. That the Complainant was taken to Awendo Sub-County Hospital and P3 and PRC forms filled and the Appellant charged. She stated that she later escorted the Appellant to Kisumu Government Chemist vide a Court order dated 17/5/2023 for a DNA test and the findings indicated that he was the father of the child born out of the alleged defilement. PW5 produced the Court Order, Exhibit Memo dated 23/6/2023 and the Government Chemist Report as exhibits 7, 8 & 9. 10. The Appellant was placed on his defense and he denied the charges against him. He stated that he was arrested on 4/10/2021 at around 4Pm when coming from work and that he was not informed of the reason for his arrest by the Chief and the village elder who alleged that he had defiled a minor and was later taken to Awendo Police Station and charged and that he did not know the offence before the court. On cross-examination he confirmed that report of the paternity test conducted was positive but denied being the child’s father. 11. The Appellant’s written submissions are undated and he amended his grounds of appeal and he stated that instead of contesting against the whole judgement, he was contesting against the sentence only on the following grounds: 1. That the sentence of 20 years’ imprisonment is a minimum mandatory sentence which denies him fair hearing where the discretion powers of the judge is also denied. 2. That the mandatory minimum sentence in defilement cases was unconstitutional and the courts have a discretion to deport from such minimum mandatory sentence. 3. That he was a first offender who was remorseful and reformed hence pleading for lenience on sentence reduction. Reasons wherefore he prayed that the appeal succeeds in its totality and the imposed minimum mandatory sentence be substituted with a more lenient sentence that he could serve. 12. The Appellant submitted that he was not seeking a review of the evidence on record but merely requesting a sentence reduction. He stated that the sentence of 20 years’ imprisonment was a mandatory minimum sentence which not only denies the accused a right to fair hearing but also denies the Judge discretionary power. He cited the case of Dismas Wafula Kilwake v Republic [2019] KECA 5 (KLR) where the Court of Appeal at Kisumu held that: Section 8 of the sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing.” 13. He also cited the case of Joshua Gichiki Mwangi v Republic (2022) eKLR where the same was holding was reiterated. 14. The Appellant further submitted that the main objective of sentencing was retribution, incapacitation, deterrence, rehabilitation and reparation and that these objectives are not naturally exclusive and can overlap. He requested the court to exercise discretion under Article 165 (3) (a) (b) and (6) of the Constitution and lower his sentence. 15. The Appellant similarly submitted that he had been reformed and rehabilitated during the period spent in prison and prayed that the court considers he was a first offender who was only 20 years’ old and was ignorant and peer pressure could easily lead him to crime but has since then matured and is fully aware of the society. Finally, the Appellant mitigated that the longer he spends in prison the harder it will be for him to restart his life after release as during his arrest he had not yet laid down a foundation for his future. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8341/eng@2026-03-19 3

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16. The Respondent’s submissions are dated 11th November 2024 and they submitted on the grounds that were abandoned and amended by the Appellant in his Submissions. 17. The Abandoned grounds can be summarized as to whether the elements of defilement which are; proof of penetration, age of the victim and positive identification were proven and it was submitted that the same were proven to the required standard of proof through the prosecution witnesses who gave evidence at the Trial Court. 18. They also submitted on the Appellant’s abandoned ground with respect to the Appellant’s rights under Article 50 (2) (g) and (h) and stated that the Appellant was informed of the said rights therefore the ground had no merit. 19. On the ground that the sentence was overly harsh, excessive and that the Appellant was a first offender, it was submitted that the Appellant was accorded a chance to mount his defense and the Trial Court noted everything as he testified and did not object to tendering his defense. That Section 8(3) of the Sexual Offense Act No. 3 of 2006 provides for a sentence of an imprisonment term of not less than twenty years and no other and that the Appellant was convicted as per the provisions described by law. 20. In conclusion, this court was urged to dismiss the appeal since the prosecution sufficiently proved the offence of defilement. Analysis and Determination 21. In a first appeal, the duty of the court was stated in Mark Oiruri Mose vs. R (2013) eKLR thus; "…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.” 22. Having considered the grounds of Appeal, and revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issue for determination is whether the sentence of 20 years was harsh and excessive in the circumstances. 23. Section 8(3) of the Sexual Offences Act provides: "…imprisonment for a term of not less than twenty years.” 24. Ordinarily, that makes 20 years the statutory minimum. However, the Court of Appeal in Dismas Wafula Kilwake v Republic it was held: "In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.” 25. In the case of Christopher Ochieng v Republic Criminal Appeal No. 202 of 2011[2018] KECA 59 (KLR) the Court of Appeal considered the constitutionality and application of a mandatory sentence https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8341/eng@2026-03-19 4

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under Section 8(1) of the Sexual Offences Act, which prescribed life imprisonment for sexual offences involving children. 26. The Court of Appeal while relying on the Supreme Court’s decision in Francis Karioko Muruatetu & Another v Republic (which held that a mandatory death sentence was unconstitutional because it deprived courts of discretion), held that the mandatory life sentence in sexual Offence Act was likewise unconstitutional because it similarly prevented judicial discretion and consideration of mitigating factors. The Court therefore set aside the mandatory life sentence and, in the exercise of its appellate sentencing powers, substituted a determinate term of 30 years’ imprisonment running from the date of the original sentence. 27. The Supreme Court in the case of Republic Vs Joshua Gichuki Mwangi However, overturned the Court of Appeal decision and held that Muruatetu was confined to the mandatory death penalty and it cannot be automatically extended to other statutory sentencing regimes. The Supreme Court declined to declare the provisions unconstitutional. It effectively affirmed that minimum sentences under the Sexual Offences Act remain valid and enforceable unless properly challenged in a constitutional petition. 28. In this case although the Appellant was a young man aged 20 years at the time of conviction and the age difference with the Complainant was barely 5 years, the complainant was 15 years old, in Grade 8 and still a child under care and protection as provided under Section 2 of the Children Act. The Complainant was defiled resulting in pregnancy and DNA confirmed the Appellant is the father of the child born out of the said defilement. Although the Complainant said the Appellant was her boyfriend, she did not have capacity at 15 years to give consent for consensual sex. This court is under a duty to mete deterrent and protective sentences under such circumstances where Pregnancy resulting from defilement, victim’s age is between 14–16, cases with scientific proof of responsibility however, this court is also alive to the fact that the Appellant was a young adult barely 20 years at the time the offence was committed and still relatively immature; he did not use force and it was his first offence. The trial court in passing sentence did not call for pre-sentence report or victim impact statement and did not evaluate the weight of the Appellant’s mitigation, the rehabilitative circumstances and proportionality of the specific jail term meted. In consideration of the age gap between the Appellant and the Complainant- 4 to 5 years difference and the sexual activity involving them though illegal, was described as consensual by the minor and no violence or aggravating factors were established; the same was not predatory or exploitative. The mitigating factors might not outweigh the aggravating ones to justify a sentence below the statutory minimum however, the Appellant has shown remorse, he has said he has reformed while in prison. A modest reduction would strike a balance between deterrence and rehabilitation while remaining faithful to the Supreme Court’s guidance. 29. In conclusion the appeal on conviction has no merits but the appeal on sentence in consideration of the Appellant’s age and mitigation as a youthful first offender and circumstances of the case have persuaded this court to tamper justice with mercy and interfere with the sentence to give him a new lease of life within the community. The sentence of 20 years is therefore set aside and substituted with 10 years imprisonment from the date of sentence on 20th March 2024. This sentence will factor in 42 days the Appellant spent in remand custody before he was released on bond on 22nd November 2021. This court also orders that the Appellant will serve the last 3 years of his sentence on probation supervision. 30. Right of appeal 14 days. DATED, SIGNED AND DELIVERED AT MIGORI THIS 19th DAY OF MARCH, 2026. HON. ANNE ADWERA- ONG’INJO https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8341/eng@2026-03-19 5

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JUDGE In the Presence of: Victor – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8341/eng@2026-03-19 6

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