Mulwa v Republic (Criminal Appeal 109 of 2022) [2023] KECA 693 (KLR) (26 May 2023) (Judgment)

Facts

The appellant, Kyalo Mulwa, was charged with delement contrary to Section 8(1) of the Sexual Offences Act, 2015, for allegedly penetrating the vagina of a 8-year-old girl. The prosecution called four witnesses, and the appellant testified in his defense.

Issues

1. the evidence of the victim and her mother was not proved to support the sentence
2. the learned trial magistrate accepted the evidence of the medical report relating to the broken hymen and hence penetration
3. the learned trial magistrate failed to consider the importance of a first offender in relation to the sentence
4. the learned trial magistrate found that the prosecution had proved the case against him beyond reasonable doubt
5. the learned trial magistrate failed to consider the importance of the evidence of his arresters to prove the case, which was missing

Reasoning

The court agreed with the State that Section 8(2) of the Sexual Offences Act, 2015, provides for only one mandatory sentence, life imprisonment, and does not give room for mitigation.

Outcome

Appeal dismissed, conviction and sentence confirmed

Authorities cited