1.The Appellant herein was charged with two counts of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act No 3 of 2006.
2.The particulars of the two counts were as follows:
3.He also faced two alternative charges of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act.
4.In a nutshell, the prosecution's case was that on the 19th of November 2015, the complainant NNM accompanied the appellant to his residence in [Particulars Withheld]. Subsequently, they relocated to [Particulars Withheld], where she resided with the appellant until the 5th of January 2016.
5.The trial magistrate convicted the appellant on both counts and sentenced him to 30 years imprisonment. The appellant dissatisfied with the decision of the subordinate court filed his petition of appeal before this court on September 20, 2019. He later abandoned the grounds of appeal on the face of his petition of appeal and filed amended grounds of appeal on January 26, 2023. The appellant’s appeal is only on the sentence meted by the trial magistrate. The appellant raises the following grounds:
6.The appeal was canvased by way of written submissions and both parties filed their respective submissions. The appellant in his submissions filed on January 26, 2023 submits that the record reflects that he was a first offender. He also claims that the complainant’s age was not ascertained. He submits that the mandatory nature of the sentence takes away the trial court’s discretion and it is then forced to impose sentences which are predetermined by the legislature contrary to the doctrine of separation of powers. He cited the case of Philip Mueke Maingi & 5 others in Petition No E017 of 2021. The appellant also faulted the trial court for failing to comply with section 333 (2) of the Criminal Procedure Code and therefore imposed a harsh sentence.
7.The respondent in their submissions argue that there was sufficient evidence establishing that the complainant was 14 years old. The appellant exploited her and they urged the court not to interfere with the discretion of the trial court. The minimum sentence for the offence as per the Act is 20 years. The complainant dropped out of school and could not deliver in the normal manner. Her life has forever changed. In light of the aggravating circumstances, they support the trial court’s sentence of 30 years and further submits that the trial court exercised its discretion judiciously.
Analysi And Determination
8.I have considered the amended petition of appeal and the rival submissions by parties and the only issue raised by the appellant is on sentence. The Court of Appeal in the case Bernard Kimani Gacheru v Republic  eKLR restated that:
9.The appellant in his submissions has maintained that the sentence meted by the trial court was harsh. The appellant relied on the case of Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021)  KEHC 13118 (KLR) (17 May 2022) (Judgment) where Odunga J. (as he then was) held that:
112.At the risk of being repetitive, I must make it clear that my finding herein does not mean that the court ought not to mete out what appears as prima facie mandatory minimum sentence. What it means is simply that the circumstances of the offence must be considered and having done so nothing bars the court from imposing such sentences as are appropriate to the offence committed.”
10.In the case of Chigongo Dzuye v Republic, Criminal Appeal No 31 of 2022, the Court of Appeal sitting at Malindi held as follows:
11.It is clear that from the above cases that the sentences prescribed under the Sexual Offences Act are not unconstitutional and can still be meted out in deserving cases. Section 8 (3) of the Sexual Offences Act provides thata 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.
12.In this case the trial magistrate imposed a sentence of 30 years. The complainant in this case was 14 years at the time of the offence and as a consequence of the defilement became pregnant and had a difficult delivery due to her age. She was forced to drop out of school and cater to her child. However, I also note that the appellant was a first offender and sought for leniency in his mitigation. In the presentence report, the trial court was asked to exercise its discretion. The trial court did consider that the appellant’s mitigation. He was a first offender and in my view the sentence meted was harsh. I therefore set aside the sentence of 30 years and substitute it with 20 years in respect of both counts and the sentences shall run concurrently. The period the appellant spent in remand shall be taken into consideration in computing his sentence.