Muchiti v Republic

4. The complainant described how the appellant, who was herding Madam Frida’s cows, tethered the cows, approached the complainant and pulled her away, taking her to Mama Frida’s sugarcane plantation, where he deled her. The complainant screamed and Mama Frida rushed to rescue her, upon which the appellant ran away. 5. The complainant’s mother, (PW2) was informed of the incident and she reported to the village elder, known as Mukasa. PW1 and PW2 identied the appellant by recognition, stating that he was Mama Frida’s herdsman. PW2 conrmed that at the time of the oence, her daughter, who was born on 8th September 2009, was 7 years old. She produced the complainant’s baptismal card, stating that the clinic card and birth certicate had been destroyed in a house re. 6. Upon being informed of her daughter’s delement, PW2 went to Mama Frida’s home where she found the appellant, Mama Frida and a gathered crowd of people. The witness took the complainant to Mapango Dispensary and later to Lugari Sub-County Hospital, where her P3 form was completed. PW1 and PW2 recorded statements at Lumakanda Patrol Base and the matter was escalated to Lumakanda Police Station. 7. PW3 was Agneta Nasimiyu Nyongesa, an ocer in charge of child protection at Nuclear Children Trust. She was notied of the delement, by her colleague, Metrine Rono. She conrmed that the complainant was treated at Mapango Dispensary and later at Lumakanda Sub-County Hospital. 8. Dr. Isaiah Wanyonyi Walela (PW4) produced the complainant’s P3 and Post Rape Care (PRC) forms. The P3 form had been completed by Dr. Eunice Chebet, who was on study leave at the time of the hearing. The witness conrmed that the complainant was rst treated at Mapango Dispensary and later at Lumakanda Sub-County Hospital on 18th February 2016. Upon examination, the complainant was found with bruises on the labia majora and minora as well as tenderness on the lateral aspect of the vagina. 9. The investigating ocer, Eva Jerop, (PW5) testied that on 18th February 2016, she was at Lumakanda Police Station, when the complainant, accompanied by her mother, made a report that the complainant had been deled by a person known to her. The investigating ocer was present when the complainant was examined and she signed the PRC form. 10. When put on his defence, the appellant gave a sworn statement. He testied that on the material date, 17th February 2016, he was at his employer’s homestead. While conceding that the complainant’s mother and his employer were neighbours, the appellant claimed that he was framed by his employer, whom he had not known well. The appellant denied the oence, stating that he did not know the complainant. 11. The appeal was heard before us on 16th June 2026, with the appellant appearing virtually from Naivasha Maximum Prison and Mr. Tanui, Senior Assistant Director of Public Prosecutions, appearing for the respondent. 12. Although the appellant had initially led grounds of appeal challenging both the conviction and sentence, when he appeared before us, he indicated that he only wished to proceed on the appeal against sentence, thus abandoning the appeal against conviction. 13. The appellant’s foundational ground on this score is that the sentence meted against him is manifestly excessive. He adds that the period he had spent in custody prior to conviction and sentence was not taken into account. In his submissions dated 8th June 2026, he terms the sentence imposed on him as unconstitutional. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1841/eng@2026-09-25 2

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14. On its part, the respondent submitted that both the trial court and the rst appellate court correctly interpreted and applied section 8(2) of the Sexual Offences Act, which prescribes the minimum sentence for the oence of delement of a child below 11 years in age. Relying on the Supreme Court decision in Republic vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) [2024] KESC 34 (KLR) counsel submitted that the two courts below adequately considered the appellant’s mitigation and imposed the appropriate sentence founded in law. 15. It is well established in both statute and case law that when this Court sits as a second appellate court, its jurisdiction is circumscribed to matters of law only. As early as Karani vs Republic [2010] 1KLR 73 it was settled that: “ …By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the rst appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole they were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law.” 16. In this respect, severity of sentence is categorized as a matter of fact and this Court in Sichei vs Republic [2025] KECA 152 (KLR) stated the following: “ This being a second appeal, the Court’s duty in a second appeal as provided under section 361(1) of the Criminal Procedure Code is to consider matters of law only. Severity of sentence is categorized under section 361(1) as a matter of fact and the Court’s jurisdiction to hear an appeal against sentence is only limited to where the High Court enhanced the sentence or where the trial court had no power to pass the sentence.” 17. In arming this position, the Court was guided by the binding decision in Republic vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (supra) where the Supreme Court of Kenya stated thus: “ Before further delving into the question of constitutionality or otherwise of the sentence, we must take cognizance of the provisions of section 361(1) of the Criminal Procedure Code which, in cases of appeals from the subordinate courts, explicitly bars the Court of Appeal from hearing issues relating to matters of fact. This section also elaborates that the severity of sentence is a matter of fact and not of law and the Court of Appeal is barred from determining questions relating to sentences meted out, except where such sentence has been enhanced by the High Court… Thus the Court of Appeal’s jurisdiction on second appeals is limited to only matters of law and it could not interfere with the decision of the High Court on facts unless it was shown that the trial court and the rst appellate court considered matters, they ought not to have considered, failed to consider matters they should have considered, or were plainly wrong in their decision when considering the evidence as a whole. In such a case, such omissions or commissions would be treated as matters of law. Consequently, the respondent’s appeal on the grounds that his sentence was harsh and excessive was not one that the Court of Appeal could lawfully determine as it fell outside the purview of the Court of Appeal’s jurisdiction.” 18. We do not need to say more; the appellant received the minimum sentence provided for delement of children within the age bracket of 11 years or less, and as armed by the Supreme Court in Republic vs https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1841/eng@2026-09-25 3

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Manyeso [2025] KESC 16 (KLR) and Republic vs. Ayako [2025] KESC 20 (KLR) where a minimum sentence is imposed by statute, courts have no power to tinker with such a sentence. 19. Regarding the appellant’s complaint that the pre-sentence custody period was not taken into account, the only thing to say is that because the appellant is serving life imprisonment, nothing can be discounted. 20. Finally, we nd the appellant’s appeal to be without merit and proceed to dismiss it. DATED AND DELIVERED AT ELDORET THIS 25TH DAY OF SEPTEMBER, 2026. JAMILA MOHAMMED ……………………………… JUDGE OF APPEAL NDUMA NDERI ……………………………… JUDGE OF APPEAL L.M. NDOLO ……………………………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1841/eng@2026-09-25 4

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