[2014] KEHC 3964 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CRIMINAL APPEAL NO. 44 OF 2008

JAVAN ASILIGWA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

=VERSUS=

REPUBLIC ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

JUDGMENT

The Appellant was convicted on three counts of having unlawful carnal knowledge of three minors against the order of nature. The offences were committed on diverse dates between 13th December, 2007 and 12th March, 2008. On 27th June, 2008, he was sentenced to 22 years imprisonment.

The Appellant filed at first a petition of appeal challenging both the conviction and sentence. On 23rd June, 2014, I granted the Appellant leave under section 350 of the Criminal Procedure Code to amend his grounds of appeal and to serve the Republic. The Appellant and the learned state CounselMr. Omwega agreed to proceed immediately with the amended petition of appeal.

It is material that the amended petition now challenges the sentence only. The Appellant was unequivocal that he has abandoned the appeal on conviction. When he addressed me, he stated that the original appeal was not heard for years; that he has spent nearly six years in prison; and, accordingly, he intends to challenge the sentence handed down only. He submitted underground 1 and 3 that the sentence the sentence is too harsh and that he has already served a third of it. He regrets the offences and he is a first offender. Lastly, on grounds 2 and 4, he submitted that he is sickly, his sight is failing, his children are suffering in his absence and that his wife is barely able to provide for their daily needs. He also stated that his land has been invaded and that a church has been build on it. Considering his age, he pleaded for mercy and review of the sentence.

The appeal is contested by the State. Learned Counsel for the State Mr. Omwega referred to Section 162 (a) of the Penal Code for the proposition that the sentence of 21 years is mandatory. He conceded that the sentence of 22 years handed down was unlawful in the circumstances. I was urged to consider that since the victims of the offence were minors, the Court can only reduce the sentence to 21 years provided by the proviso to section 162 (I). In a synopsis, the case for the State is that the minors were incapable of giving consent; accordingly, the only sentence that could be handed down was for 21 years imprisonment.

I have heard the rival submissions. This is a first appeal to the High Court.I have re-evaluated the evidence on record and drawn my own conclusions. Njoroge V republic [1987] KLR 99, Okeno V Republic [1972] E.A. 32,Kariuki Karanja V Republic [1986] KLR 190. The Lower Court analyzed the evidence of the minors and the other prosecution witnesses vis-a-vis the defence proferred by the Appellant. The Court found the Appellant had carnal knowledge of the three minors and that his defence that he was being set up or implicated by the minors was untenable and a red-herring. In my view, the evidence clearly placed the Appellant at the locus-in-quo, he had opportunity and did commit the offences. In any event, the Appellant has unequivocally abandoned the appeal on conviction. I thus find that the Appellant was properly convicted on all the three counts.

Section 162 (a) of the Penal Code provides that any person who has carnal knowledge of any person against the order of nature is guilty of a felony punishable by 14 years imprisonment. However, under the proviso in section 162 (I), if the offence was committed “without the consent of the person who was carnally known” the offender is liable to 21 years imprisonment. The learned trial magistrate correctly found that the victims were minors. From the evidence, they were aged 14 years. They were thus incapable of giving legal consent to be carnally known. The Appellant was thus liable to imprisonment for 21 years. The trial magistrate upon hearing mitigation of the Appellant said as follows:-

“ I have considered the mitigating factors. Accused person is remorseful. He fends for himself. But section 162 (a) (ii) ties my hands and places the sentences at a minimum of 21 years. I can see he is old. For above reasons, accused is sentenced to imprisonment for 22 years with hard labour in count 1. ”

The Appellant received similar sentences in counts 2 and 3. The learned trial magistrate correctly stated the law at section 162 (a). I am at a loss why he departed from 21 years to 22 years. The sentence of 22 years was clearly unlawful. Section 162 (a) (i) couched in mandatory terms. So long as no consent was obtained the offender shall be sentenced to 21 years imprisonment.

The Appellant says he is old, that he is remorseful, that he needs to fend for his Children and assist his wife to protect his property. Some of those matters were taken in mitigation. But it is not lost on me that the three minors were vulnerable persons who will carry the scars of this offence for life. The age and medical situation of the Appellant fades in comparison to the gravity of the offences and the ages of the minors. Furthermore, the law is in black and white: the sentence of 21 years is mandatory.

Granted those circumstances, I will set aside the sentence of 22 years and replace it with the lawful sentence of 21 years. The appeal thus succeeds narrowly on that point to the extent that the Appellant shall serve the sentence of 21 years on all the three counts or the remainder of the term thereof.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 23RD JUNE, 2014.

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G.K. KIMONDO

JUDGE.

Judgment read in open Court in the presence of:-

Javan Asiligwa (Appellant in person)

Mr. Omwenga (State Counsel)

Beatrice (Court Clerk)

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G.K. KIMONDO

JUDGE.

23/6/2014.