[2017] KEHC 2343 (KLR)
The court held that the sentence imposed by the trial court was not excessive, as it was in accordance with the minimum sentence prescribed by section 9(2) of the Sexual Offences Act. The appellate court reiterated that its role is not to substitute its own sentence unless the original sentence is manifestly...
Source-derived case information.
- Citation
- [2017] KEHC 2343 (KLR)
- Parties
- Appellant: Elias Munene Muchira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 108 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; sentence confirmed
- Judges
- MM Kasango
- Legal Topics
- Sexual Offences, Sentencing Principles, Attempted Defilement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elias Munene Muchira
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed for attempted defilement was excessive or warranted interference by the appellate court.
- 2 Whether the trial court properly applied the minimum sentence under section 9(2) of the Sexual Offences Act.
Ratio Decidendi
The court held that the sentence imposed by the trial court was not excessive, as it was in accordance with the minimum sentence prescribed by section 9(2) of the Sexual Offences Act. The appellate court reiterated that its role is not to substitute its own sentence unless the original sentence is manifestly excessive or illegal. Given the circumstances, including the age of the victim and the statutory minimum, there was no basis for interfering with the sentence. The appeal was therefore dismissed and the sentence confirmed.
Court Disposition
appeal dismissed; sentence confirmed
Orders
- The appeal is dismissed.
- The sentence of the trial court is confirmed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NANYUKI
CRIMINAL APPEAL NO. 108 OF 2016
ELIAS MUNENE MUCHIRA …. APPELLANT
VERSUS
REPUBLIC ……………...…. RESPONDENT
(Being an appeal from the original conviction and sentence in NanyukiChief Magistrate’s Court Criminal Case No. 1212 of 2015 by Hon. E. NgigiSenior Resident Magistrate on 22nd July 2016)
JUDGMENT
1. ELIAS MUNENE MUCHIRA after trial before the Chief Magistrates Court at Nanyuki was convicted over attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act. On conviction he was sentenced to 10 years imprisonment. He was aggrieved by that sentence and has filed this appeal.
2. In his submissions which he has entitled as mitigation he submitted that he is a first time offender who is now reformed and promises to keep law and order and seeks the reduction of his sentence. He also submitted that he had been trained during his stay at the prison but he did not indicate what that training was.
3. Mr. Tanui the Principal Prosecuting Counsel opposed the appeal against sentence. He submitted in opposition that the Sexual Offences Act provides a minimum sentence on the charge of defilement under section 9(2). He also drew the attention of the court to the age of the victim which was 8 years. He therefore sought the dismissal of the appeal.
4. According to the trial court’s proceedings the appellant was an employee in the neighbouring homestead where the victim lived. According to the evidence of the victim an eight year old girl the appellant attempted to defile her on two occasions. He threatened her with death if she disclosed those two incidents. As a consequence the minor girl did not tell anyone about the incidence. It was not until she fainted and on being taken to hospital and on the doctor carrying out investigation it was found that the minor had been defiled. It was then that the minor disclosed what the appellant had done to her.
5. Bearing in mind the submissions made it is important to state that an appellant court does not alter a sentence on the ground that it might have passed a different sentence. See the case of MACHARIA VS REPUBLIC (2003)KLR. Bearing the above in mind and that the sentence provided under section 9 of the Sexual Offences Act the sentence of the trial court was not in any way excessive to attract interference by this court.
6. On that ground alone the appellant appeal fails. The trial court’s sentence is hereby confirmed.
DATED and DELIVERED at NANYUKI this 8th day of NOVEMBER 2017
MARY KASANGO
JUDGE
CORAM
Before Justice Mary Kasango
Court Assistant: Njue/Mariastella
Appellant: Elias Munene Muchira …………..……………………………
For the State: …...............................................
Language: ……………………………………………………..
COURT
Judgment delivered in open court.
MARY KASANGO
JUDGE