[2022] KEHC 12977 (KLR)

K v Republic (Criminal Appeal E046 of 2022) [2022] KEHC 12977 (KLR) (19 September 2022) (Judgment)

Neutral citation: [2022] KEHC 12977 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E046 of 2022

LN Mutende, J

September 19, 2022

Between

CKK

Appellant

and

Republic

Respondent

((Appeal against the original conviction and sentence in S.O Case No.E032 of 2022 at the Senior Principal Magistrate’s Court Kimilili by Hon. G. Adhiambo –PM on 25/4/2022))

Judgment

1. CKK, the appellant was arraigned following allegations of having committed an incestuous act with his biological sister, JWK on the 23rd day of April, 2022.

2. At the outset, he admitted the charge, was convicted and sentenced to serve twenty (20) years imprisonment.

3. Dissatisfied the appellant proffered an appeal indicated as against the judgment/decision on grounds that the sentence imposed is too harsh; that he is 22 years old and his judgment was impaired; he has been rehabilitated; his mitigation was disregarded; and in the interest of justice he seeks a retrial.

4. The appeal was disposed through written submissions. It was urged by the appellant that he was not informed promptly of the charges as stipulated byarticle 50(1) of the constitution and the danger of pleading guilty to such a serious offence. That it was not established if he was in a right thinking state of mind.

5. That the sentence imposed was manifestly harsh and excessive. That the case was not so grave as it could have been referred to Probation/Community Service Orders(CSO) and the family would have explored reconciliation.

6. That when granted the opportunity to mitigate he only talked of problems and challenges that his family was undergoing, but, if given a chance he would have something cogent to state.

7. The State/Respondent through learned Prosecution Counsel, Ms. Rachel Karani opposed the appeal. She urged that the appeal is unmerited as the appellant pleaded guilty twice unequivocally and by virtue of section 348 of theCriminal Procedure Code the appeal is untenable. That the appellant has not challenged the charge, detailed facts read to him and the manner in which the facts were stated. Arguing that the pleas was unequivocal she cited the case ofJohn Mwendo MusauvRepublic (2013)eKLR where the court stated that:“The legal principles to be applied in plea taking were well communicated in the locus classicus case of Adan v Republic[1973] EA 445 where the court held:(i)The charge and all the essential ingredients of the offence shall be explained to the accused in his language or in a language he understands.(ii)The accused’s own words should be recorded and if they are on admission, a plea of guilty should be recorded.(iii)The prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts.(iv)If the accused does not agree with the facts or raises any question of his guilt his reply must be recorded and change of pleas entered.(v)If there is no change of plea a conviction should be recorded and a statement of facts relevant to the sentence together with the accused’s reply should be recorded.”

8. That the appellant has not alleged that he did not understand the charge and the facts thereof; and, that the sentence meted out was proper.

9. This being a first appellate court, its duty is to re-analyze what transpired at trial and come up with an independent finding.

10. Section 348 of the Criminal Procedure Code(CPC) provides that:No appeal on plea of guilty, nor in petty cases No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.

11. In the case of Alexander Lukoye MalikavRepublic(2015) eKLR the Court of Appeal stated that:“A court may only interfere with a situation where an accused person has pleaded guilty to a charge where the plea is imperfect, ambiguous or unfinished such that the trial court erred in treating it as a plea of guilty. Another situation is where an accused person pleaded guilty as a result of mistake or misapprehension of the facts. An appellate court may also interfere where the charge laid against an accused person to which he has pleaded guilty disclosed no offence known to law. Also where upon admitted facts the appellant could not in law have been convicted of the offence charged.”

12. This means that where an accused person has admitted a charge and consequently been convicted for the same, an appellate court can only interfere with the conviction where the plea is equivocal.

13. This is a case where upon arraignment the charge which captured the necessary ingredients was read to the appellant who admitted the fact as well. The record indicated thus:“It is true I had sex with my sister”

14. The appellant claims to have pleaded guilty to the charges without knowing the consequences. In his submissions he faulted the court for not appreciating whether or not he was in his right mind. Section 11 of the Penal Code provides thus:Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary isproved.

15. The appellant told the court his preferred language of communication and his age. There was no suggestion that he could have been of unstable mental state. He was given an opportunity to address the court prior to being sentenced and there was nothing to move the court to act pursuant to the provisions of section 162 of the CPC that would cause the court to inquire into his mental status.

16. The procedure of taking plea was stated in the well acknowledged case of AdanvRepublic(1973) EA 445 where the court stated that:(i)The charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands;(ii)The accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded;(iii)The prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts;(iv)If the accused does not agree with the facts or raises any question of his guilt his reply must be recorded and change of plea entered;(v)If there is no change of plea a conviction should be recorded and a statement of the facts relevant to sentence together with the accused’s reply should be recorded.”

17. The charge was read in Kiswahili a language the appellant was conversant with and he communicated to the court in that particular language. The substance of the charge and elements thereto were explained to him and he responded having understood what was explained. The record shows that having admitted the truthfulness of the explanation rendered, he went on to explain what he did in his own language. He stated that:“…..I had sex with my sister.”

18. And after the facts were presented, he explained how he committed the act. He was given the opportunity to mitigate pursuant to the provisions of section 216 of the CPCand he tendered the required evidence. He stated thus:“Accused- I am like a father in our home. I have 2 sisters who are in form 2. I am the one who has been providing my sisters with school fees and I have been assisting my mother. My family needs me as the parent in that home. If you imprison me my siblings who will suffer (sic). My mother has young children. They solely depend on me.”

19. His complaint is that the trial court disregarded his mitigation. But, looking at the record, the trial court noted thus:“I have considered the nature of the offence which the accused has been convicted with his mitigation. The fact that he is a first offender. The accused has abused the trust placed upon him by the society which expected him to abide by the laws of this country and to protect the vulnerable person in the society such as his younger sister. A person with the character of the accused needs to be rehabilitated before he can be released to the society. I have looked at the provisions of section 20(1) of the Sexual Offences Act. The accused has confirmed that the complainant is his sister. The offence which the accused has committed is prevalent and I noted that he deserves a deterrent sentence.I have noted the mitigation of the accused and he appears not to be remorseful. He believes that if he is imprisoned it is the other siblings who will suffer and he appears not to have appreciated the magnitude of the offence he has committed. The accused is a young man, It disheartening to see the choice he has made concerning how his life will be from today hence forth. I have considered the best interest of his sister who is a minor and in as much as sympathises with their mother because both the accused and the complainant are his children. I will comply with the provisions of S. 20 of the sexual offences act and do hereby sentence the accused to serve (Twenty Years) Imprisonment. He has a Right of Appel within 14 days.”

20. The learned trial magistrate gave reasons for reaching the decision to sentence the appellant to twenty (20) years imprisonment.

21. The appellant also complained that the sentence was harsh. Section 3(3) of the Sexual Offences Act provides thus:A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.

22. Circumstances under which an appellate court can interfere with a sentence passed by the trial court were stated in the case of Bernard Kimani Gacheru v Republic (2021) eKLR thus:“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with the sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material,

____or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist” (emphasis mine). 23. The appellant herein was a first offender and a young adult aged 22 years. He admitted the charge at the outset therefore saved court’s time. One of the objectives of sentence is to deter an offender from committing another offence. In this case the appellant was incarcerated hence removed from the society and especially so, from his family, and in particular his sister that he was preying on. He claims to have been rehabilitated which is a suggestion that he may have acknowledged the harm that was occasioned.

24. In the premises, I set aside the sentence meted out of twenty (20) years imprisonment, which I substitute it with fifteen (15) years imprisonment.

25. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLYTHROUGH MICROSOFT TEAMS AT NAIROBI,THIS 19TH DAY OF SEPTEMBER, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Court Assistant -BrendaAppellantMr. Ayekha- ODPP