[2019] KEHC 4008 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

APPELLATE SIDE

(Coram: Odunga, J)

CRIMINAL APPEAL NO. 29 OF 2018

BETWEEN

ANTONY MUSEMBI MUTISYA................................................APPELLANT

AND

REPUBLIC..................................................................................RESPONDENT

(Being an appeal from the conviction and sentence of the Hon. L. Kassan, SPM

in Mavoko SPM Criminal Case No. SO 9 of 2016)

REPUBLIC..................................................................................PROSECUTOR

VERSUS

ANTONY MUSEMBI MUTISYA......................................................ACCUSED

JUDGEMENT

1. The appellant herein, Antony Musembi Mutisya, was charged before Mavoko SPM’s Court in Criminal Case No. SO 9 of 2016 with the offence of defilement contrary to section 8(1) and (3) of the Sexual Offences Act, No 3 of 2006. The particulars were that the appellant on 26th August, 2016 in Athi River Subcounty within Machakos County, intentionally and unlawfully caused his male genital organ (penis) to penetrate the female genital organ (vagina) of NMM, a child aged 12 years.

2. The prosecution’s case as narrated by the complainant was that on 20th August, 2016 she was at home with her siblings who were asleep when at 10. 00pm. the appellant, her father knocked the door, called her name and asked her to open. After she opened the door, the appellant followed her to the bed, pulled her and threatened to kill her if she screamed while holding a knife. The appellant then put her on the ground, removed her panties, removed his clothes and did bad manners to her by putting his thing inside her. After that the appellant told her to put on her clothes and go to sleep threatening to defile her every day. It was her evidence that her mother was at work at Kitengela.

3. After hearing the prosecution case, the learned trial magistrate placed the appellant on his defence. In his unsworn statement, the appellant stated that on that day he was at work with his wife in his miraa stall up to 11. 00pm. However, a disagreement arose from the fact that the appellant decided not to deduct a debt owed to them by a customer from the amount that the said customer gave out for the purchase of miraa with his wife accusing him of having an affair with the said customer, a sex worker. Apparently, the disagreement did not end there and they carried it up to their house where they fought in front of the children and neighbours after which the appellant decided to leave for Mlolongo.

4. The next day when he returned his wife was still enraged and demanded they split the business a demand he acceded to by leaving the miraa business. On 27th he left to look for a job and got construction work where he worked up to 6. 00 pm after which he went home but found no one in the house. After waiting till 8. 00pm he left for Kitengela, his work place and found that his wife had taken items from the stall and upon getting the contacts of the cyclist who ferried the said items he reported the matter to the village elder who called the cyclist and they were taken to a house where they found his wife and he took back his properties. Upon his return to his house he met a crowd and his wife accused him of making love to herself and to their child. He was then beaten and was only rescued by the Chairman of community policing and taken to the police station where he was accused of defiling his daughter. According to him he did not commit the offence.

5. Nevertheless, the court found him guilty of the offence and he was sentenced to 20 years’ imprisonment.

6. In this appeal, the appellant is only aggrieved with the sentence. He has urged the court to consider the fact that he is remorseful and is a first offender hence begs for leniency. According to him, he is the sole breadwinner and his family rely on him. He stated that since imprisonment he has improved in his behaviour through rehabilitation programs through which he is now saved. He stated that he has learnt woodwork skills in which he has attained grade 2 and has enrolled for grade 1 hence planning to open a workshop to train the youth.

7. On the part of the Respondent, it was submitted by Ms Mogoi, learned prosecution counsel that this court ought to uphold the sentence since the appellant was the complainant’s guardian hence ought to have protected the minor. In her view, the 20 years meted was sufficient considering the relationship between the appellant and the complainant. It was her submission that the said sentence would serve as a warning to others.

8. Since the appellant is only appealing against sentence, it is important to set out the circumstances under which an appellate court interferes with sentence. The principles guiding interference with sentencing by the appellate Court were properly, in my view, set out in S vs. Malgas 2001 (1) SACR 469 (SCA)at para 12 where it was held that:

“A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court…However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”

9. Similarly, in Mokela vs. The State (135/11) [2011] ZASCA 166, the Supreme Court of South Africa held that:

“It is well-established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served.”

10. The predecessor of the Court of Appeal in the case of Ogolla s/o Owuor vs. Republic,[1954] EACA 270, pronounced itself on this issue as follows:-

"The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”

11. To this, I 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)while in the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003the 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 that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”

12. The Court of Appeal, on its part, in Bernard Kimani Gacheru vs. Republic [2002] eKLRrestated that:

“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”

13. In this case the appellant was charged under section 8(1) as read with section 8(3) of theSexual Offences Act.The said provision states:

(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.

14. Section 8(3) of the Sexual Offences Act applies the phrase is liable upon conviction to imprisonment for a term of not less than twenty years. Sir Henry Webb C.J. in Kichanjele S/O Ndamungu versus Republic (1941) 8 EACA 64 had this to say on the proper construction of the words “liable to”:

“The wording used throughout the code is “shall be liable to” but a consideration of the various sections shows in our judgment, that the use of the words “shall be liable to” does not import that the sentence mentioned in any particular section in which these words occur is merely a maximum and that the court may impose any lesser sentence below the limit indicated.”

15. The predecessor of the court went further in Opoya versus Uganda [1967] EA 752 at page 754 where Sir Clement DeLestang V.P. picked up the conversation inter alia thus:

“It seems to us beyond argument that the words “shall be liable to” do not in the ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words they are not mandatory but provide a maximum sentence only and while the liability existed, the court might not see fit to impose it.”

16. A similar position was adopted in D W M vs. Republic (supra) where the Court held that:

“As for the sentence the 1st appellate court properly addressed its mind to the operative words in Section 20(1) of the Sexual Offences Act that the offender “Shall be liable to imprisonment for life” means that imprisonment for life was the maximum sentence for an offence under the section. A lesser sentence could be imposed considering that the appellant was a first offender though the offence was said to be prevalent, serious and most importantly that the appellant who was supposed to be the complainant's protector turned out to be her tormentor and perpetrator of the defilement. The judge however deemed it proper to substitute the sentence for life imprisonment with that of twenty (20) years imprisonment and it was within his powers to do so. The resulting sentence was within the limits permitted by law and we find no reason to interfere with the exercise of that discretion.”

17. In this case, however, the relevant provisions use the phrases “shall be liable” and “not less than”in the same breath. As a result, the two provisions suffer from the malady of poor legal draftsmanship since the two phrases imply, in legal terms, diametrically opposed positions. In criminal law, where there is an ambiguity in phraseology of sentencing the accused is entitled to the benefit of the least severe of the prescribed punishments for an offence, since as Mativo, J graphically put it in Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR:

“The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favourite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea.”

See also Evanson Muiruri Gichane vs. Republic [2010] eKLR and Tom Ochieng Wayumba vs. Director of Public Prosecutions [2019] eKLR.

18. It is therefore my view that the twin subsections must be read as if the sentences provided are the maximum sentences. Accordingly, bearing the totality of the above principles in mind, it is my view that the use of the words “shall be liable to imprisonment” in section 8(3) and (4) of the Sexual Offences Act gives room for the exercise of judicial discretion. The learned trial magistrate did not state whey he meted what I have found to be the maximum sentence. However, the appellant is the complainant’s father and the court cannot close its eyes from the fact that the crime committed by the appellant was a heinous crime and when committed by a father it is even more traumatic. That position was appreciated in Tito Kariuki Ngugi vs. Republic [2008] eKLRwhere the court held that:

“The Appellant…caused her trauma which she will have to live with for the rest of her life.”

19. This Court does not condone offences against minors and vulnerable persons. As was appreciated by Madan, J (as he then was) in Yasmin vs. Mohamed [1973] EA 370:

“The High Court is especially endowed with the jurisdiction to safeguard the interests of infants, as the court is the parent of all infants. The welfare of the infants is paramount and it is dear to the heart of the court. There would be no better tribunal to perform the task more wisely as well as affectionately. All infants in Kenya of whatever community, tribe, sect fall within the ambit of the Guardianship of Infants Act and the court is charged with the sacred duty of ensuring that their interests remain paramount and are duly preserved.”

See also Omari vs. Ali [1987] KLR 616.

20. However, the accused is a first offender. In Charo Ngumbao Gugudu vs. Republic [2011] eKLR, the Court of Appeal held that:

“It has long been a principle of sentencing that a maximum sentence should only be meted out to the worst offender under the particular section that the offender is charged. In this appeal, the appellant was a first offender aged about 22 at the time of the offence. It is true that the complainant suffered serious injuries but it is equally true that the appellant was provoked at the time that he hit the complainant. There was no basis for the finding made by the trial magistrate and upheld by the superior court, that the complainant was “completely mentally disabled”.”

21. In my view the sentence meted out to the appellant was clearly excessive in light of my findings above.

22. In this case considering the circumstances of the case, it is my view that 15 years’ imprisonment would be sufficient punishment.

23. Section 333(2) of the Criminal Procedure Code provides that:

(2) Subject to the provisions of section 38 of the Penal Code every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.

Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

24. It is therefore clear that it is mandatory that the period which an accused has been held in custody prior to being sentenced must be taken into account in meting out the sentence. While the court may in its discretion decide that the sentence shall run from the date of sentencing or conviction, it is my view that in departing from the above provisions, the court is obliged to give reasons for doing so since the decision not to include the period spent in custody is an exception to the statutory provision that can only be justifiable upon reasonable grounds and as I have stated above, the accused is entitled to the benefit of the least severe of the prescribed punishments for an offence.

25. I associate myself with the decision in Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR where the Court of Appeal held that:

“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012. ”

26. The same Court in Bethwel Wilson Kibor vs. Republic [2009] eKLR expressed itself as follows:

“By proviso to section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody. Ombija, J. who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at 22nd September, 2009 he had been in custody for ten years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.”

27. According to The JudiciarySentencing Policy Guidelines:

The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.

28. In this case the learned trial magistrate did not state when the sentence meted would commence. In my view it is necessarily prudent that there be an indication of the same particularly where an accused has been in custody for a long period before being sentenced. In this case, however, the accused was arrested on 4th September, 2016. Though he was admitted to bail, there is no indication that he was in fact released on bond or bail.

29. Accordingly, I hereby quash the sentence imposed on the appellant herein and substitute therefor a sentence of 15 years’ imprisonment. The said period will run from 4th September, 2016.

30. Judgement accordingly.

Judgement read, signed and delivered in open Court at Machakos this 3rd day of October, 2019.

G. V. ODUNGA

JUDGE

In the presence of:

Appellant in person

Miss Mogoi for the Respondent

CA Geoffrey