The facts as accepted by both the trial court and the High Court were that the complainant who was a girl aged 12 years came back home from school on the material day to collect a Science book. The appellant was a labourer in the complainant’s home and on the material day (13^th March, 2006) there was nobody else at home except the appellant who then lured the complainant to his house, locked the door and proceeded to defile the complainant. The incident was later reported to the parents of the complainant who took the complainant for medical examination and treatment. The appellant was arrested and charged.

In concluding his judgment delivered on 9^th January, 2007, the trial magistrate said:-

After mitigation by the appellant, the learned trial magistrate proceeded to sentence the appellant as follows:-

“Having considered the gravity of offence, Mitigation by accused and that he is a first offender, I am inclined to say that incidences of defilement around this country have increased manifold to crisis proportions. This mostly is done by adult male who have no fear to prey on innocent school going children. The psychological trauma upon the complainant may take time to heal or it is possible she may never recover from the unlawful attempted defilement by the accused person. 

In dismissing the appellant’s appeal in the High Court, Lenaola, J. in his judgment delivered on 18^th September, 2009 expressed himself thus:-

“9.  In this case, the Appellant admitted that on the material day, he was with the complainant but PW1 stated that the Appellant then locked his house and went on to remove his underwear and her underwear and actually had carnal knowledge of PW1. It is the law as I understand it that there was no need for corroboration of PW1’s evidence as is the law in Section 124 of the Evidence Act. I am convinced that PW1 and the Appellant had sexual contact and the appellant had at the very least the intention which was not merely preparatory and in this case he may have gone further than merely preparing himself. There is evidence beyond reasonable doubt that he did so and the attempt was proved even if the actual (sic) may have been committed. 

When the appeal came up for hearing before us on 22^nd November, 2011, the appellant appeared in person, while the State was represented by Mr. V.S. Monda, (Principal State Counsel).

When asked to address us the appellant handed over his written submissions and said that he had nothing to add. The appellant concluded his written submission thus:-

From the appellant’s written submissions, it is clear that this appeal is against sentence only.

The appellant was convicted of attempted defilement contrary to section 145(2) of the Penal Code which provides:-

The foregoing has since been repealed by the Sexual Offences Act of 2006.

And section 389 of the Penal Code provides:- 

In view of the foregoing, we agree with both the appellant and Mr. Monda that the sentence of 18 years imprisonment was inappropriate, nay, illegal. The appellant should have been sentenced to imprisonment for a term not exceeding seven years. We note that the appellant was convicted and sentenced on 9^th January, 2007. We therefore allow this appeal against sentence, set aside the sentence of 18 years imprisonment and substitute therefore a sentence which will result in the appellant being released from prison forthwith unless otherwise lawfully held. Those shall be our orders.

Dated and delivered at NAIROBI this 9^th day of December,   2011.