Joel Omino Ngutu v Republic [2013] eKLR bleeding from the anus. PW3 confirmed on examination that there were tears on the anus and bruises on the PW1's chest. The appellant has challenged the validity of the P3 alleging that it was forged by altering the date of reporting the offence and date it was filled. The court agrees that the dates on the P3 appears to have been altered. However the time for the alteration has not been shown. The court however does not see any prejudice caused by the said alteration. The offence had already been proved by the consistent oral evidence by the PW1, PW2 and PW3. In any event the P3 is only the record of what PW3 witnessed while examining the PW1. This court is satisfied that the appellant defiled the PW1 as charged. The court is however not satisfied that the trial court imposed the correct sentence to the appellant. As earlier observed the age of the victim of the defilement is the guiding factor in assessing the magnitude of the sentence to award. In the present case, the age of the PW1 was not assessed. The PW2, mother of the PW2 never said anything about his (PW1) age. So where did the PW3 get the age of the PW1 when he filled his P3? He never said that he assessed the age of the PW1 or that he got it from any particular source. This court finds that the exact age of the PW1 was not proved although by a common sense assessment he was below the age of 18 years, and therefore a child. For the appellate court to interfere with the sentence awarded by the trial court, it must be shown that the trial court awarded the sentence after considering irrelevant factors or without considering relevant factors. A relevant factor in sentencing refers to facts which mitigate for a lesser sentence like the accused persons being a first offender among others. In the present case, the prosecution said that the appellant was not a first offender and was serving sentence. In mitigation the appellant confirmed that he was serving a 3 years sentence for grievous harm. He also stated that he was an orphan. The trial court however ignored mitigation and proceeded to impose the maximum sentence of life imprisonment without first ascertaining the age of the victim. This court finds that by ignoring the mitigation and failing to order for age assessment of the PW3, and instead awarding the maximum sentence the trial court erred. The sentence is therefore open to interference on appeal which is hereby done by reducing it to fifteen (15) years imprisonment. It is so reduced because that is the minimum sentence for defilement under the Sexual Offences Act. As a way of parting shot, this court finds that the definition given to genital organ under section 2 of the Sexual Offences Act to be scientifically and socially wrong. It is trite if not common sense that genital organ means a reproduction organ which cannot include the anus. The foregoing reasoning leads to the question why was Section 162 of the Penal Code not repealed? Is there discretion on the part of the prosecution to whimsically chose between charging under either section 8 (1) of the Sexual Offences Act or Section 162 of the Penal Code when the offence involves penetration into the anus? May be it is the right time the two provisions of the law are critically interrogated to see whether there is any room for abuse or conflict. It would appear that the extended and false definition of genital organ to include anus under section 2 of the sexual offences is the cause of such potential conflict between section 162 of the Penal Code and Section 8 (1) of the Sexual Offences Act. http://www.kenyalaw.org - Page 4/5