[2022] KEHC 10912 (KLR)

Hamisi v Republic (Criminal Appeal E010 of 2021) [2022] KEHC 10912 (KLR) (2 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10912 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Appeal E010 of 2021

RE Aburili, J

June 2, 2022

Between

Oscar Ndeta Hamisi

Appellant

and

Republic

Respondent

(An appeal against the sentence imposed and delivered by the Hon. J.P. Nandi on the 24. 5.2021 in the Principal Magistrate’s Court in Bondo in SO Case No. E012 of 2021)

Judgment

Introduction 1. The appellant herein Oscar Ndeta Hamisi was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act No. 3 of 2006.

2. The particulars of the charge were that on diverse dates between 12th and 24th October 2020 at Tingwang’i market, Nyajuok sub location, Karemo division in Siaya sub county within Siaya County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of GAO., a child of age 17 years and 4 months. The appellant also faced the alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act.

3. The appellant pleaded not guilty to the charge and the matter proceeded to full trial where the prosecution called 6 witnesses. Placed on his defence, the appellant gave sworn testimony denying the offence.

4. In his judgement, the trial magistrate found that the prosecution had proved its case beyond reasonable doubt and proceeded to convict the appellant and subsequently sentenced him to serve 15 years’ imprisonment.

5. Aggrieved by the trial court’s sentence imposed, the appellant filed his petition of appeal on the June 3, 2021, setting out the following grounds of appeal, challenging sentence alone:a.That I was convicted after full trialb.That I was 19 years old and the complainant was 17 years at the time of the incident.c.That I am not appealing against conviction but sentence only.d.That I am an orphan having lost my mother and in the year 2005 and 2015 respectively when I was only 14 years old.e.That my parents died and left me with two siblings aged 4 and 9 years whom I was taking care of.f.That I never coerced the complainant but I met her at a football match near my resident 7km from their home in Gem after we agreed to cohabitate in my residence.g.That we only disagreed over payments when she started demanding more than the much we agreed and took my phone forcefully.h.That the sentence awarded is excessive in the circumstances.i.That the long custodial sentence is going to ruin my life and my future will turn bleak completely.j.That my mitigation factors were not considered by the trial magistrate.

6. The appellant filed written submissions to canvass his appeal.

7. It was the appellant’s submission that he was a first time offender who had no previous record and as such his sentence ought to have reflected the same. The appellant further submitted that he was the sole bread winner for his siblings who soley relied on him having lost his parents in 2005 and 2015.

8. He further submitted that on various instances the trial magistrate rested the burden of proof on him such as during his cross-examination of the medical evidence adduced which he submitted was not conclusive as it was not stated whether the hymen was broken or freshly broken.

9. The appellant further submitted that he spent his trial in custody and that the same should be considered in computation of his sentence as was held in the case of Ahmed Abolfathi Mohammed & Another v Republic (2018) eKLR.

Analysis 10. I have considered the appellant’s grounds of appeal and the submissions. I have also considered the circumstances under which the offence was committed, with the appellant not contesting the soundness of his conviction. This appeal, as per the grounds of appeal, is against sentence of 15 years’ imprisonment imposed on the appellant.

11. In such cases, a court is concerned with the legality or propriety or appropriateness of the sentence imposed on the appellant and not the merits of the appeal against conviction. The court also considers the penalty clause, mitigating and or aggravating factors, and the objects of punishment.

12. The charge brought against the appellant is provided for under section 8(1) as read with section 8(4) of the Sexual Offences Act. The said section provides that:(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.

13. The law prescribes a statutory minimum sentence for the offence of defilement under section 8(4) of the Sexual Offences Act. This is because the language used in section 8(4) is not less than.

14. Previously, the principle laid down by the Supreme Court Francis Karioko Muruatetu & Another v Republic [2017] eKLR, was that, provisions of the law which exclude or fetter discretion of a court of law in sentencing were inconsistent with the Constitution.

15. The Court of Appeal on its part stated that pursuant to the Supreme Court’s decision in the Muruatetu (2017) case, if the reasoning is applied, the sentences stipulated by section 8(2), (3) and (4) of the Sexual Offences Act which are mandatory minimums should also be considered unconstitutional on the same basis.

16. The reasoning for the holding by the Supreme Court and the Court of Appeal was that the mandatory minimum or maximum sentences deprived the Court of its legitimate jurisdiction to exercise discretion in sentencing. It was further observed that mandatory sentence fails to conform to the tenets of fair trial which are an in-alienable right guaranteed under Articles 50 and 25 of the Constitution. See Christopher Ochieng v Republic KSM CA Criminal Appeal No. 202 of 2011 [2018] eKLR, and Jared Koita Injiri v Republic, KSM CA Criminal Appeal No. 93 of 2014 [2019] eKLR. Nonetheless, the Supreme Court was emphatic death penalty was that lawful sentence and that the trial court could still impose it in deserving cases, having regard to the circumstances of each case.

17. Later in July 2021, the Supreme Court in the case of Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR clarified the position and stated interalia that the decision in Muruatetu 2017 could not be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution but that the said decision only applied in respect of sentences of murder under Sections 203 and 204 of the Penal Code.

18. Taking into consideration the decision of the Supreme Court in Muruatetu 2021 (supra), it is clear that the mandatory sentence provided in section 8 (4) of the Sexual Offences Act is lawful unless otherwise changed and any sentence to the contrary is illegal.

19. It must be noted that the mandatory minimum sentences under the Sexual Offences Act are indicative of the seriousness of the offence and signify the legislative intent to protect the rights of the children who are vulnerable.

20. The trial court record shows that the trial magistrate considered the mitigations given by the appellant and the seriousness of the offence of defilement stating that the appellant took advantage of an innocent girl who had gone to him for assistance specifically as she was seeking a boda boda to take her home. Accordingly, it is my opinion that the appellant does not deserve the discretion of the court in sentencing as the sentence imposed on him was lawful.

21. The appellant further urged the court to consider Section 333(2) of the Criminal Procedure Code as he was in custody during his trial. Judicial pronouncements on this aspect emphasize that courts must give full effect to section 333(2) of the Criminal Procedure Code in sentencing. The said section provides that:“Subject to the provisions of section 38 of the Penal Code (Cap. 63) 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 (emphasis mine).”

22. This duty is also contained in the Judiciary Sentencing Policy Guidelines (under clauses 7. 10 and 7. 11) where it is provided that:“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.”

23. The duty to take into account the period an accused person had remained in custody pending the conclusion of his trial in sentencing (under section 333(2) of the Criminal Procedure Code) has been acknowledged and applied by this court in several cases and by the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR where the Court of Appeal stated that:“The appellants have been in custody from the date of their arrest on 19th June 2012. 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(s) 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. ”

24. The same position was taken by the Court of Appeal in the case of Bethwel Wilson Kibor v Republic [2009] eKLR.

25. It is therefore clear that it is mandatory that the period which an accused has been held in custody prior to being sentenced be taken into account in meting out the sentence where it is not hindered by other provisions of the law and where the accused did not abscond upon being released on bond pending trial.

26. From the trial court record, it is discernible that the appellant was arrested on the October 24, 2020 and taken to court on the October 26, 2020 when the trial court granted him bond of Kshs. 100,000 with one surety of similar amount or to deposit cash bail of Kshs. 50,000. However, there is no evidence on record of the appellant’s bond being processed which is an indication that the appellant did not raise the bail as granted by the trial court. For that reason, I find that the appellant was in custody during his trial period before he was convicted and sentenced to serve 15 years’ imprisonment. In sentencing the appellant, the trial Court did not take into account that period that the appellant had been in prison custody.

27. In the circumstances, I find and hold that the appellant is entitled to have his sentence computed taking into account the period that he had been in prison remand custody and commencing from the date of his arrest on October 24, 2020. I therefore order that the sentence imposed on the appellant shall be calculated from October 24, 2020, the date of his arrest.

28. This file is closed. I so Order.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT SIAYA THIS 2ND DAY OF JUNE, 2022 (VIRTUALLY, APPELLANT PRESENT AT KISUMU MAXIMUM PRISON)R.E. ABURILIJUDGE