[2023] KEHC 26869 (KLR)

Cherop v Republic (Criminal Appeal 25 of 2020) [2023] KEHC 26869 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26869 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal 25 of 2020

AC Mrima, J

December 14, 2023

Between

Peter Kimutai Cherop

Appellant

and

Republic

Respondent

(Appeal arising out of the conviction and sentence of Hon. P. K. Mutai (Senior Resident Magistrate) in Kitale Chief Magistrate’s Court Criminal Case (S.O) No. 198 of 2019 delivered on 3rd March, 2020)

Judgment

Introduction: 1. The Appellant herein, Peter Kimutai Cherop, was charged with the offence of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act before the Chief Magistrates Court at Kitale in Sexual Offence No. 198 of 2019 (hereinafter referred to as ‘the criminal case’). The particulars of the offence were as follows:On the 6th day of September, 2019 in Endebes Location within Trans-Nzoia County, the Appellant unlawfully and intentionally caused his genital organ namely penis to penetrate into the genital organ namely vagina of EC, a child aged 7 years old.

2. In the alternative, the Appellant was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. Strangely though, the particulars of the alternative charge were similar to those of the main offence of defilement.

3. The Appellant denied all the charges and he was tried. After a full trial, the Appellant was found guilty of defilement and was convicted accordingly. He was then sentenced to 30 years’ imprisonment.

The Appeal: 4. The Appellant was utterly aggrieved by the conviction and sentence. He subsequently lodged an appeal.

5. In his Petition of Appeal, the Appellant challenged the sentence to the extent, and so alleged that, it was excessive and harsh. He prayed for a lenient sentence.

6. During the hearing of the appeal, the Appellant relied on his written submissions which he filed on 13th February, 2023. He reiterated his plea for a lenient sentence.

7. On the part of the prosecution, through its extensive written submissions dated 16th June, 2023, it contended that the conviction was safe and that all the ingredients of the offence had been proved as required in law. It also submitted that the sentence as lawful and commensurate to the offence given the age of the victim. It urged that the appeal be dismissed.

Analysis: 8. The appeal herein is basically on sentence. This Court says so because, although the Appellant filed an original Petition of Appeal on 10th March, 2020 where he challenged both the conviction and sentence, he later filed another Petition of Appeal on 13th February, 2023 where he abandoned the contest against the conviction. The written submissions also filed on the like date did not have anything to do with the aspect of the conviction.

9. Having said as much, the Court in Wanjema v Republic (1971) EA 493 laid down the general principles upon which the first appellate Court may act on when dealing with an appeal on sentence. An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact or that it considered an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate Court must not lose sight of the fact that in sentencing, the trial Court exercised discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion.

10. I have considered this matter with caution and care. The trial Court was careful in the manner it conducted the sentencing proceedings.

11. The Court considered the nature of the offence and the mitigation, among other relevant actors.

12. Sentencing is a crucial part in the criminal process and the administration of justice. It is also discretionary. In exercising the discretion, a sentencing Court is called upon to be guided by a raft of considerations. Such are discussed at length in the Sentencing Guidelines published on 29th April, 2016 vide Gazette Notice No. 2970 by the Hon. The Chief Justice of the Republic of Kenya who is also the Chairperson of the National Council on the Administration of Justice (NCAJ) and in case law including the Supreme Court in Petition No. 15 of 2015 Francis Karioko Muruatetu & another v Republic [2017] eKLR.

13. This Court does not see how the sentencing proceedings are to be impugned. This Court, however, posits that it would have been more assuring for the Court to have called for a Pre-Sentence Report given the gravity of the offence and the possible sentence. Although that did not happen, given the age of the victim, the relationship between the victim and the Appellant and the trust the victim bestowed on the Appellant, the sentence rendered cannot be faulted.

14. As I come to the end of this decision, I once again call upon Learned Prosecutors to be more vigilant and ascertain that charges are always drafted within the permissible legal parameters. As pointed out in this case, the particulars of the main and alternative counts are similar. That cannot be possible in law.

15. In the end, the following final orders of this Court do hereby issue: -a.The entire Appeal is dismissed.b.This file is hereby marked as closed.Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 14TH DAY OF DECEMBER, 2023. A. C. MRIMAJUDGEJudgment delivered in open Court and in the presence of: -Peter Kimutai Cherop, the Appellant in person.Miss Kagali, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Respondent.Chemosop/Duke – Court Assistants.