[2014] KEHC 786 (KLR)
The High Court found that the sentence imposed by the lower court was the minimum prescribed by law for the offence of committing an indecent act with a child. There was no cross-appeal by the state to challenge the conviction or seek enhancement of the sentence. The appellate court held that it would not interfere...
Source-derived case information.
- Citation
- [2014] KEHC 786 (KLR)
- Parties
- Appellant: Kennedy Tom Kithuka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 328 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- LN Mutende
- Legal Topics
- Sentencing Principles, Sexual Offences, Defilement, Indecent Act, Appeals on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Tom Kithuka
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant for the offence of committing an indecent act with a child was excessive or warranted interference by the appellate court.
- 2 Whether the appellate court can interfere with the sentence where the minimum prescribed sentence was imposed.
Ratio Decidendi
The High Court found that the sentence imposed by the lower court was the minimum prescribed by law for the offence of committing an indecent act with a child. There was no cross-appeal by the state to challenge the conviction or seek enhancement of the sentence. The appellate court held that it would not interfere with a sentence that is reasonable and lawful in the circumstances. The appeal against sentence therefore lacked merit and was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal against sentence is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
NO. 454/2014
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. 328 OF 2013
KENNEDY TOM KITHUKA....................................................................APPELLANT
VERSUS
REPUBLIC ..........................................................................................RESPONDENT
(Being an appeal from the original conviction and sentence in Machakos Chief Magistrate’s Court Sexual Offence No.430 of 2011 by Hon. J. Omange PM on 22/9/2011)
J U D G M E N T
Kennedy Tom Kithukawas charged with the offence of defilement contrary toSection 8 (1) (2) of the Sexual Offences Act No. 3 of 2006. In the alternative he was charged with the offence of committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act.
He was tried and convicted of the alternative charge and sentenced to serve ten (10) years imprisonment.
The appellant was satisfied with the conviction entered but appealed against the sentence meted out. Seeking to serve a non-custodial sentence, he stated that he is a first born of a single parent (mother).
In a response thereto learned counsel Ms. Njuguna opposed the appeal arguing that in fact the court should alter the finding of the lower court and convict the appellant of the offence of defilement since the evidence adduced proved the main charge.
The duty of this court is to re-look at the lower court record afresh prior to reaching any conclusion.
It is important to note that there was no cross appeal by the state therefore this court restrains itself from dealing with the conviction of the appellant.
Ordinarily, an appellate court would not interfere with the sentence meted out is reasonable in the circumstances (See Joakim John versus Republic Criminal Appeal No. 58 of 2014 (Tanzania).
In the instant case the sentence that was meted out by the lower court was the minimum prescribed sentence for the offence the appellant was convicted of. Consequently, the sentence was reasonable in the circumstances.
In the premises the appeal lacks merit. It is dismissed.
DATED, SIGNED and DELIVERED at MACHAKOS this 3RD day of DECEMBER, 2014.
L.N. MUTENDE
JUDGE