[2021] KEHC 1693 (KLR)
The court held that the appellant, having been convicted of defilement under Section 8(2) of the Sexual Offences Act, was liable to a mandatory life sentence. However, the trial court exercised discretion and imposed a lesser sentence due to the appellant's advanced age. The appellate court found no merit in the...
Source-derived case information.
- Citation
- [2021] KEHC 1693 (KLR)
- Parties
- Appellant: Joseph Munyua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E075 of 2021
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- TW Cherere
- Legal Topics
- Defilement, Sentencing Principles, Sexual Offences Act, Appeal on Sentence, Custodial Sentence, Remand Periods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Munyua
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant for defilement was lawful and appropriate.
- 2 Whether the period spent in remand should be considered in sentencing.
Ratio Decidendi
The court held that the appellant, having been convicted of defilement under Section 8(2) of the Sexual Offences Act, was liable to a mandatory life sentence. However, the trial court exercised discretion and imposed a lesser sentence due to the appellant's advanced age. The appellate court found no merit in the appeal, noting that the appellant was fortunate not to have received the mandatory life sentence and that there was no basis to interfere with the sentence imposed by the trial magistrate. The court also referenced Section 333(2) of the Criminal Procedure Code regarding consideration of time spent in remand, but declined to vary the sentence.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The sentence of the trial court is upheld.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
(CORAM: CHERERE-J)
CRIMINAL APPEAL NO. E075 OF 2021
BETWEEN
JOSEPH MUNYUA......................................................................................APPELLANT
AND
REPUBLIC...................................................................................................RESPONDENT
(Being an appeal from the original sentence by Hon. M.A ODHIAMBO RM
in MERULaw Court in criminal S.O No. 54 of 2019
delivered on 12th August 2020)
JUDGMENT
The Trial
1. JOSEPH MUNYUA(Appellant) has filed this appeal against sentence and conviction on a charge of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006 (the Act). The offence was allegedly committed on 6th day of November 2019 against E.Ka child aged 10 years.
2. When the matter came before this court on the 30. 11. 2021, Appellant asked that the days spent in remand be considered.
Analysis and Determination
3. Section 333(2) of the Criminal Procedure Code provides that:
(2) Subject to the provisions of section 38 of the Penal Code 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.
4. It is worthy to note that the Appellant having been convicted under Section 8(2) of the Act was liable to be sentenced mandatory imprisonment for life. The court record shows that he was saved that mandatory sentence for the reason that he is advanced in age.
5. Appellant should count himself lucky that he was not given notice of enhancement of sentence for had he been warned; I would not have hesitated to enhance it. For now, I decline the invitation to vary the sentence meted by the trial magistrate.
6. This appeal has no merit and it is dismissed.
7. These orders shall apply to CRIMINAL APPEAL NO. E095 OF 2021.
DELIVERED AT MERU THIS 02ND DAY OF DECEMBER 2021
WAMAE. T. W. CHERERE
JUDGE
Court Assistant - Kinoti
Appellant - Present in person
For the State - Ms. Mwaniki