1.This second appeal is against the judgement delivered on September 5, 2018 by Majanja, J in Mombasa High Court Criminal Appeal No 187 of 2017. Being a second appeal our mandate is limited by Section 361(1) (a) to consider issues of law only but not matters of fact that have been tried by the first court and re-evaluated on first appeal. In Njoroge v Republic  KLR 388 it was held by this Court on the said mandate on a second appeal:
4.It was similarly held in Karani v R  1 KLR 73 that:-
6.The determination of this appeal must therefore be based on the above principles. We shall briefly visit the facts of the case purely to satisfy ourselves whether the two Courts below carried out their mandate as required in law.
7.The Appellant had been charged before the Chief Magistrates Court at Mombasa with the offence of defilement contrary to Section 8(1) as read with Section 8 (2) of the Sexual Offences Act. He faced the alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.
8.The evidence before the trial court was that on the date of the incident, PW1 who had earlier on knocked on PW6’s door while crying in search of one Zena was later seen in the company of the Appellant by PW6 who saw the Appellant buy juice for PW1 before leading PW1 into his (Appellant’s) house.
9.According to PW1, she was lured by the Appellant to the Appellant’s house where the Appellant removed her innerwear and defiled her. PW1 narrated the incident to PW2, her grandmother and PW3 and led them to the Appellant’s house. PW4, a member of Port Reitz Community Policing to whom the report of the incident was made received the Appellant from the members of the public who had arrested and detained him and took him to Changamwe police station. Upon examination, it was found that PW1 had a broken hymen, an abrasion in the anal opening, a bloody discharge and was infected with HIV Aids.
10.The investigations were conducted by PW7 and at the completion of the investigations, the charges were levied against the Appellant.
11.In his defence, the Appellant denied that he committed the offence and asserted that the charges were maliciously instigated.
12.In his judgement, the learned trial magistrate found that the prosecution had proved all the ingredients of the offence, convicted him and sentenced him sentenced him to life imprisonment.
13.The Appellant appealed to the High Court on the grounds that the prosecution case was not proven beyond reasonable doubt; that his defence was not considered; that it was unsafe to rely on the uncorroborated unsworn testimony of PW1; and that the identification evidence was contradictory. His appeal to the High Court was dismissed by Majanja, J on September 5, 2018 who upheld both the conviction and sentence.
14.The Appellant was dissatisfied with the decision and filed a notice of appeal. Before us the Appellant has taken issue with the fact that the prosecution did not prove its case beyond reasonable doubt; that there was no sufficient evidence of penetration; that there was no evidence that the complainant was 11years; that there was no evidence that it was the Appellant who defiled the Complainant; that the learned trial magistrate relied on hearsay as the maker of the medical documents was not called, that there were contradictions in the prosecution evidence; and that the sentence was harsh and excessive in the circumstances.
15.It is the Appellant’s case that though he was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, with the former defining the offence and the latter section 8(2) setting out the sentence for the offence of defilement with a child (minor) of eleven (11) years or less, the clinic card that was relied upon as evidence of age showed that the minor was born on 6/4/2005 hence was 11 years and 10 month at the time the offence was committed and therefore did not fall within the age ambit contemplated by section 8(2) of the Sexual Offences Act. The Appellant was of the view that the case of Hadson Ali Mwachongo v R KCA Cr App No 65 of 2015 was wrongly decided since the section under which he was charged referred to 11 years or less hence there was no lacuna. According to him, since the law does not provide for punishment for a victim who is above 11 years but below 12 years, such a victim ought to be deemed to be 12 years. In the Appellant’s view, to hold otherwise, is an attempt to place a short fall in a statute that is occasioned by the legislature, on the shoulders of the person charged under that Act.
16.It was submitted that since the victim had to be examined twice to confirm her HIV status, it must be taken that there was uncertainty and dissatisfaction over the findings of the first examination. The Appellant wondered why it was not deemed fit to subject him to HIV test in light of the forgoing. In the Appellant’s view, the failure to do that ought to lead to the conclusion that the prosecution did not prove its case beyond reasonable doubt since the evidence of HIV was meant to corroborate the prosecution’s case.
17.The Appellant pointed out that there was contradiction in the evidence of PW1 and PW2 regarding the prior identity of the perpetrator by PW1. It was further pointed out that the lady who led PW1 and PW2 to the home of the perpetrator was never called as a witness. On the authority of the case of Bukenya and Others v Uganda [19721 EA 549, it was submitted that the prosecution was under a duty to call the said lady.
18.It was submitted by the Appellant that the two lower courts failed to take cognizance of the current jurisprudence with regard to the sentencing of offenders. The Appellant urged that should this Court allow his submission on the conviction of the lesser charge under section 8(3) of the Act, the Court should consider imposing a more lenient sentence.
19.In opposing the appeal, it was submitted that the age of the Complainant was proved by way of a clinic card. According to the Respondent there was evidence of penetration both from the Complainant’s evidence and the medical evidence which was properly produced in compliance with Section 77 of the Evidence Act. In this case it was submitted that the incident occurred in broad daylight hence there was no possibility of mistaken identification. According to the Respondent the evidence that was believed by the two concurrent courts below was unassailable and there was no requirement that all the witnesses be called to testify.
21.We have considered the issue raised in this appeal and as already stated hereinabove, this Court’s jurisdiction on second appeal such as this one is restricted to matters of law. A cursory look at the grounds of appeal raised before us clearly reveals that the Appellant’s grievances are directed at the decision of the Learned Trial Magistrate. That decision was the subject of the appeal before the High Court. While we have no power to revisit the concurrent findings of fact it is not lost to us that unlike this Court, the first appellate Court is under a legal obligation to analyse and re-evaluate the evidence placed before it. Therefore, an allegation that the first appellate court failed to undertake its legal obligation is a matter of law. It is therefore properly within our mandate to deal with the issue whether the two courts below carried out their mandate imposed on them by the law and whether the sentence imposed was lawful.
22.In this case, the Appellant has raised the issue whether based on the evidence placed before the trial court, it was proper to impose the sentence against him under Section 8(2) of the Sexual Offences Act. According to him, since the Complainant was 11 years and 10 months he ought to have been sentenced under Section 8(3) of the said Act which prescribes a lesser sentence. Regrettably, we did not have the benefit of the Respondent’s submissions on this very important point.
23.From the evidence adduced, the offence occurred on February 27, 2017. According to the Complainant’s clinic record, she was born on April 6, 2005. It is therefore true that at the time of the offence, the complainant was 11 years and 10 months as the Appellant submits. The question that falls for determination is under what section ought the Appellant to have been charged. Section 8(2) of the Sexual Offences Act under which the Appellant was sentenced states as follows:
24.According to the Appellant since the subsection adopts the phrase “eleven years or less”, a plain reading of the said section must lead to the conclusion that the section is not intended to apply to situations where the victim is beyond the calendar years of 11 years.
25.We agree that taken literally, the said section ought not to apply where the victim is, say 11 years and one day old. It is however appreciated even by the Appellant himself that such an interpretation is not free of controversy since it would create a lacuna in respect of offences committed against victims whose ages fall between 11 years and one day and 11 years and 365 days. Though the Appellant contends that such an interpretation would have the effect of giving benefit to an accused person, this issue has been the subject of judicial determination in Hadson Ali Mwachongo v Republic  eKLR in which this Court expressed itself as follows:
26.The Court, while appreciating the difficulty imposed by lack of clarity in the law, proceeded that:We are of a different mind for the following reasons. Section 2 of the Interpretation and General Provisions Act defines “year” to mean a year reckoned according to the British Calendar. Under the British Calendar Act, 1751, a year means a period of 365 or 366 days. Thus a person who is, for example, 10 years and 6 months is deemed to be10 years old and not 11 years old. That approach entails not taking into account the period above the prescribed age so long as it does not amount to a year. Back to the Sexual Offences Act, a victim who is days or months above 11 years will be treated as 11 years old so long as he or she has not attained 12 years of age. On the same reasoning, the victim in this case who was 15 years, 6 months and 13 days old must be treated to be 15 rather than 16 years old.”
27.In determining such borderline cases, we are guided by the holding of this Court in Kimutai v Lenyongopeta & 2 Others Civil Appeal No 273 of 2003  2 KLR 317;  3 KLR (EP) 72 in which this Court cited with approval The Discipline of Law 1979 London Butterworth at page 12 by Lord Denning that:
28.Since an interpretation that leads to the conclusion that offenders falling within the said grey area are not covered by the Act would be absurd and unjust, we are called upon to use our good sense to remedy the situation so as to do what Parliament would have done, had they had the situation in mind. There is no doubt that the Sexual Offences Act provides for punishment for defilement in a graduated scale and that the younger the victim, the severe the punishment. In our view in order to avoid further absurdity which would arise if we were to start dealing with situations where for example a victim is one day older than 11 years, we are fully in agreement with the interpretation adopted by this Court in Hadson Ali Mwachongo v Republic (supra).
29.Accordingly, this ground fails.
30.As regards the finding that PW1 was HIV positive, it is clear that the tests on both occasions returned the same results. We therefore do not agree with the Appellant that the mere fact that two tests were done was an indication of uncertainty. As for the failure to subject the Appellant to a similar test, while we agree that the court could have invoked its powers under section 36(1) of the Sexual Offences Act and directed that samples be taken from the Appellant for the purposes of ascertaining his status, it is our view that the failure to do so is not necessarily fatal where there is sufficient evidence to back up the prosecution’s case. This Court in Martin Nyongesa Wanyonyi v Republic  eKLR cited with approval Geoffrey Kionji v Republic Cr. Appeal No 270 of 2010 where it was held that:
31.The Court concluded that subjecting an accused to a medical examination to prove that he committed the offence is not a mandatory requirement of law.
32.In this case, the two courts below believed the evidence presented and we are not entitled to interfere with their concurrent findings of fact unless we are satisfied that such findings are perverse. Accordingly, this ground is unfounded.
33.It was argued before us that there was contradiction in the evidence of PW1 and PW2 regarding the prior identity of the perpetrator by PW1. We agree that where there are material contradictions or inconsistencies in the evidence of the prosecution witnesses which are not reconciled by the two courts below, this Court may well interfere since that may amount to the failure by the first appellate court to subject the evidence to a fresh analysis and re-evaluation in order to arrive at its own decision. In this case however, we have gone through the judgement of the High Court Judge as the first appellate court and we find that the High Court dealt with the matter and concluded that the alleged inconsistencies ere not material. We have no reason to disturb that finding.
34.It was contended that the lady who led PW1 and PW2 to the home of the perpetrator was never called as a witness. According to the evidence of PW6, she was the one who took PW1’s grandparents to the Appellant’s house. Therefore, the submission that the person who directed PW2 to the home of the Appellant was not called is not borne out by the evidence.
35.As regards the sentence, this Court sitting in Nyeri in Criminal Appeal No 84 of 2015 between Joshua Gichuki Mwangi v Republic, expressed itself as hereunder:
37.In the Joshua Gichuki Mwangi v Republic (supra), the Court was clear in its mind that the sentences prescribed under the Sexual Offences Act are not unconstitutional and can still be meted out in deserving cases. We therefore disabuse the notion that the sentences prescribed under the Sexual Offences Act are unconstitutional. The Court only held that when imposed merely because they are mandatory without considering the circumstances of the case, then just like in Muruatetu 1 they contravene the constitutional principles.
38.We however note that though Joshua Gichuki Mwangi v Republic (supra) was decided on October 7, 2022, after the directions given by the Supreme Court in Francis Karioko Muruatetu & another v Republic:Katiba Institute & 5 others (Amicus Curie) (2021) eKLR had been given on 6h day of July, 2021, the Court in Joshua Gichuki Mwangi v Republic (supra) did not refer to the said directions (hereinafter referred to as Muruatetu 2). In order to appreciate the directions in Muratetu 2, and considering the controversy surrounding the matter, it is, in our view necessary to produce, in extenso, the said directions in which the Supreme Court expressed itself, inter alia as follows:
39.The Supreme Court continued:
40.The Supreme Court concluded that:i.The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under Sections 203 and 204 of the Penal Code;ii.The Judiciary Sentencing Policy Guidelines to be revised in tandem with the new jurisprudence enunciated in Muruatetu;iii.All offenders who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re- sentencing hearing.iv.Where an appeal is pending before the Court of Appeal, the High Court will entertain an application for re-sentencing upon being satisfied that the appeal has been withdrawn.v.In re-sentencing hearing, the court must record the prosecution’s and the appellant’s submissions under Section 329 of the Criminal Procedure Code, as well as those of the victims before deciding on the suitable sentence.vi.An application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court.vii.……….viii.Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on resentencing.ix.These guidelines will be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They will also apply to sentences imposed under Section 204 of the Penal Code before the decision in Muruatetu.
41.Our understanding of the Muruatetu 2 is that Muruatetu 1 was only dealing with the offence of murder and not any other offence. Therefore, as regards the sentences in respect of other offences in which mandatory sentences or minimum mandatory sentences are prescribed, we understand the position of the Supreme Court to be that parties are at liberty to challenge their constitutional validity by properly filing, presenting and fully arguing before the High Court and escalating them to the Court of Appeal, if necessary, at which a similar outcome as that in Muruatetu 1 may be reached. In other words, nothing bars this Court, upon hearing such challenges, from finding that minimum mandatory sentences, if imposed merely because the law prescribes the same without considering the circumstances of the case, is contrary to the letter and spirit of the Constitution.
42.It is clear that minimum mandatory sentences, prima facie, do not permit the Court to consider the peculiar circumstances of the case such as the differentiation in the ages of the victim and the culprit in order to arrive at an appropriate sentence informed by those circumstances as the Court is deprived of the discretion to consider whether a lesser punishment than the minimum prescribed, would be more appropriate in the circumstances.
44.It is our view that the Supreme Court in both Muruatetu 1 and Muruatetu 2 did not address itself to the constitutionality of mandatory minimum sentences. It simply clarified that Muruatetu 1 only dealt with murder. We agree with that clarification. However, the Supreme Court left it open to the Courts to hear any challenge to the mandatory and mandatory minimum sentences and make a determination one way or another after which the determination may be escalated to the Supreme Court.
45.In our view, even without the application of the ratio in Muruatetu 1, we find that whereas the sentences prescribed under the Sexual Offences Act are not unconstitutional by the mere fact of such prescription and the trial courts are at liberty to impose them, the imposition of the same, as the minimum mandatory sentences, does not meet the constitutional threshold particularly Article 28 of the Constitution.
46.In the case before us, the learned trial magistrate, in imposing the life sentence, stated that the offence was serious and the law prescribed minimum sentences for the same. The learned Judge of the High Court also found that pursuant to section 8(2) of the Sexual Offences Act, the court was mandated to impose life sentence. Therefore, none of the two courts below considered any mitigating circumstances such as the contention by the Appellant that he was a first offender which was not challenged by the prosecution. We cannot be certain that the said sentence would have been imposed if mitigation had been considered. We are cognisance of the fact that the complaint was tested and found to be HIV positive. That would obviously have been a factor to be taken into account had there been evidence that the complaint’s HIV status was as a result of the incident. There was no such evidence as the Appellant was never examined.
47.In the premises, we set aside the life sentence imposed on the Appellant and substitute therefore a sentence of 30 years to run from the date of his original conviction.