David Ndumba v Republic [2013] eKLR "The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors”. To this, we would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case (R - v- Shershowsky (1912) CCA 28TLR 263)." See also In Omuse - v- R (Supra) while in the case of Shadrack Kipkoech Kogo –vs- R., Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus:“ sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or factor or that a wrong principle was applied or that short of these, the sentence itself is so harsh and excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)” 20. In the case of Keneth Kimani Kamunyu -vs- R. (2006) EKLR it is stated that an appellate Court can only interfere with the sentence if it is illegal or unlawful. In the instant case, it is not in dispute that the appellant was charged under Section 3(1) (a) & (c) of the Sexual Offences Act wherein Section 3(3) prescribes upon conviction a minimum sentence of ten years imprisonment and a maximum sentence of life imprisonment. The trial court sentenced the appellant to seven years imprisonment which in our view was an illegal sentence. We find that the High Court was correct in setting aside the illegal sentence of seven years imprisonment and substituting it with the legal sentence of ten years under the Sexual Offences Act. See this Court’s decision in Stanley Nkunja –vs- Republic, – Criminal Appeal No. 280 of 2012. 21. The upshot of the foregoing is that we uphold the appellant’s conviction and sentence issued by the High Court. Accordingly, the appeal herein is dismissed. Dated and delivered at Nyeri this 3rd day of October. 2013. ALNASHIR VISRAM …………………………. JUDGE OF APPEAL MARTHA KOOME ………………………….. JUDGE OF APPEAL J. OTIENO-ODEK ………………………….. JUDGE OF APPEAL I certify that this is a http://www.kenyalaw.org - Page 6/7