Stanley Nkunja v Republic [2013] eKLR an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.” In Joseph Maina Mwangi vs. Republic - Criminal Appeal No. 73 of 1993, this Court held:“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of section 382 of Criminal Procedure Code viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentences.” 12. The appellant contended that the prosecution failed to prove that V had been defiled and therefore, the learned trial Judge (Lesiit, J.) erred in convicting him for the offence. The medical evidence indicated that V was not bleeding during examination and according to the appellant this proved that V was never sexual assaulted. Section 8(1) of the Sexual Offences Act provides that a person who commits an act which causes penetration with a child is guilty of an offence termed defilement. Penetration under the said Act is defined as, “...the partial or complete insertion of the genital organs of a person into the genital organs of another person.” It was Ali's uncontroverted evidence that V who was 9 years had a bruised labia and a partially broken hymen when she was examined. He further testified that the vaginal penetration was not complete. From this evidence we are satisfied that the prosecution proved to the required standard that V had been defiled. We have also looked at the record and find no reason to interfere with the concurrent findings of the two courts below that it was the appellant who had defiled V. 13. Lastly, we wish to deal with the issue of whether the learned Judge erred in enhancing the appellant's sentence, without prior notice to him. The appellant was sentenced to 20 years imprisonment by the trial court. Subsequently, the High Court on a first appeal, enhanced his sentence to life imprisonment. It is not in dispute that the appellant was not served with a notice of enhancement of sentence by the respondent. Section 8(2) of the Sexual Offences Act prescribes a mandatory sentence of life imprisonment for the offence of defilement of a child below 11 years old. In this case V (victim) was 9 years old. Therefore, we find that the learned Judge was correct in holding that the sentence issued by the trial court was illegal. Consequently, was the appellant required to be served with a notice of enhancement of sentence in respect of the illegal sentence? While it is prudent, and fair, to warn the appellant and give him notice of enhancement, we are of the view that such a notice is not required in respect of an illegal sentence. This is because by virtue of the provisions of Section 347(2) of the Criminal Procedure Code, appeals to the High Court may be on a matters of facts and law. Illegality of a sentence is a matter of law and therefore, the learned Judge was correct in enhancing the sentence to life imprisonment. In Kingsley Chukwu -vs- Republic- Criminal Appeal No. 257 http://www.kenyalaw.org - Page 4/5