AO v Republic (Criminal Appeal E060 of 2023) [2025] KEHC 8422 (KLR) (16 June 2025) (Ruling)
Neutral citation:
[2025] KEHC 8422 (KLR)
Republic of Kenya
Criminal Appeal E060 of 2023
AC Bett, J
June 16, 2025
Between
AO
Appellant
and
Republic
Respondent
Ruling
1.By a Judgement delivered on 24th January 2025, the court upheld the conviction of the Appellant for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. However, since the Appellant was established to have been a minor at the time he commited the offence, I called for a pre-sentence report to guide me in determining the appropriate sentence.
2.A social inquiry was undertaken by the Kakamega County Probation Office and pre-sentence report filed on 10.3.2025.
3.An analysis of the pre-sentence report portrays the Appellant as a young man who did not comprehend the legal implications of his romantic liason with an underage girl. An only child, he dropped out of school due to financial constraints and started doing manual labour to cover his basic needs. He was of good character with no known history of drug or substance abuse. His relationship with the victim was well known to both families and resulted in the birth of a child.
4.The Appellant is said to have acknowledged his mistake and to be genuinely remorseful. He is said to be focused on making amends by assuming his parental responsibilities.
5.The victim is said to have rejoined school but later dropped out in Class 8. She has left the three (3) year old child, a product of her relationship with the Appellant, in the care of her grandfather and brother.
6.The victim’s family and the community do not oppose a non-custodial sentence for the offender and feel that his presence would be more beneficial to his minor daughter.
7.If the Appellant had been arraigned immediately the offence was reported, he would have been tried as a minor and although he was older than the victim, it was by about three years. The trial court ought to have considered the Appellant’s age while making its decision on sentencing and having failed to do so, condemned the Appellant alone when it was evident from the proceedings that Appellant engaged in a mutual love affair with the victim while they were at the adolescent stage.
8.In the case of Evans Wanjala Siibi v. Republic [2019] eKLR, the Court of Appeal held thus:-
9.In my view, to condemn an adolescent boy twenty (20) years imprisonment because of a romantic relationship with a girl who is also at an adolescent stage is to rob the boy’s future and may in the end, be counter-productive. The couple ought to have been treated equally and given a chance to reform. In any event, since there was a child born out of the relationship, the court ought to have also considered that the said child needed parental love and care and given a chance to the Appellant to exercise his parental responsibility.
10.In the end, I hereby set aside the twenty (20) year sentence and substitute therefore a probationary sentence of three (3) years. The Appellant is therefore released from prison to serve the three (3) years’ probation.
11.Those are the orders of the court.
DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 16TH DAY OF JUNE 2025.A. C. BETTJUDGEIn the presence of:Appellant in personMs. Chala for the RespondentCourt Assistant: Polycap