[2022] KEHC 13442 (KLR)

Fundi v Republic (Criminal Appeal 77 of 2021) [2022] KEHC 13442 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13442 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Criminal Appeal 77 of 2021

HPG Waweru, J

October 6, 2022

Between

Stephen Fundi

Appellant

and

Republic

Respondent

(Appeal from original Sentence in Nanyuki CM Sexual Offence Case No 52 of 2018 – N Thuku, PM)

Judgment

1. The appellant herein, Stephen Fundi, was convicted after trial of the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, No 3 of 2006 (the Act). He was acquitted of the main charge of defilement. It was alleged that on July 22, 2018 at [Particulars Withheld] Trading Centre in Laikipia-North Sub-County within Laikipia County, he intentionally touched the vagina of one PL, a child aged 17 years with his penis.

2. On December 20, 2018 the appellant was sentenced to 10 years imprisonment. He has appealed only against that sentence. I have considered his submissions in so far as they concern the sentence.

3. On his part learned counsel for the respondent submitted that the sentence meted out was lawful and the minimum provided by law should the trial court settle on a custodial sentence. He however pointed out that the appellant was about 19 years old when he committed the offence, while the complainant herself was nearly 18 years old. He opined that a non-custodial sentence would probably have served the ends of justice in these circumstances.

4. I have also noted from the testimony of the complainant that she said the appellant was her boyfriend at the time of the offence, and that he was still her boyfriend as she testified.

5. The trial court was sympathetic to the appellant but felt bound to sentence him as it did because in its mind, ten years imprisonment was a minimum mandatory sentence. The court failed to appreciate the discretion given to it in section 11(1) of the Act, which states –“11. (1) Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”The use of the term “…is liable upon conviction to…” means that the trial court has the discretion to impose a non-custodial sentence if it considers it suitable. Such non-custodial sentence could be a fine, or an order of probation, or discharge (conditional or otherwise). But should the court decide that the accused deserves a custodial sentence, then it must award at least 10 years imprisonment. However, with the declaration of unconstitutionality of the mandatory nature of the death sentence in murder cases by the Supreme Court of Kenya in the now notorious case commonly referred as the Muruatetu Case, even that statutory mandatory minimum term of imprisonment should not bind the trial court.

6. To get back to the present case, I have no doubt in my mind that had the trial court appreciated its discretion under section 11(1) aforesaid of the Act, it would not have sent the appellant to jail. The complainant was shy of 18 years by only about 5 months, while the appellant was about 19 years old. They were boyfriend and girlfriend. The girl had taken herself to the boyfriend’s house. In these circumstances, why should the boy suffer in jail for 10 years?

7. I will in the circumstances partially allow this appeal against sentence. I will set aside the term of 10 years imprisonment imposed and substitute therefor the time already served. That means that the Appellant shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.

DATED AND SIGNED AT NANYUKI THIS 3RD DAY OF OCTOBER 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 6TH DAY OF OCTOBER 2022