[2022] KEHC 14002 (KLR)

Kisibo v Republic (Criminal Appeal E55 of 2021) [2022] KEHC 14002 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14002 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E55 of 2021

RPV Wendoh, J

October 19, 2022

Between

Evans Akello Kisibo

Appellant

and

Republic

Respondent

Judgment

1. Evans Akello Kisibo, the appellant, was convicted by the Chief Magistrate Migori on 5/5/2020 for the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act.

2. The particulars of the charge were that on 12/5/2019 in Uriri Sub County of Migori County, intentionally caused his penis to penetrate the vagina of EAO, a child aged years.

3. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act but there was no finding made on the said charge.

4. Upon conviction, the appellant, was sentenced to serve eleven years imprisonment. He is aggrieved by the said sentence and preferred this appeal on sentence alone.

5. His grounds of appeal are basically pleas in mitigation where he contends that though the sentence is lawful, it is manifestly harsh and excessive because he left behind old parents for whom he was the sole breadwinner; that he is a first offender and was remorseful, that he is ready and willing to serve on probation.

6. The appeal was opposed. Mr. Omooria, the prosecution counsel filed submissions and urged that the grounds of appeal are nothing but mitigation; that this court can only interfere with the trial court’s sentence if it is demonstrated that the sentence is illegal, or so harsh and excessive that it amounts to a miscarriage of justice; or that the trial court exercised its discretion capriciously. Counsel relied on the decision of Shadrack Kipchoge Kogo vs. Republic Ogolla O. Owuor vs Republic 1954 EACA 270 and Bernard Kimani Gacheru vs. Republic (2002) eKLR and the Sentencing Policy Guidelines; that while exercising its discretion, the court should bear in mind the principle of proportionality, deterrence and rehabilitation; that under Section 8(4) of the Sexual Offences Act, the minimum sentence is fifteen (15) years imprisonment and by sentencing the appellant to eleven (11) years, the court was very lenient having taken into account the appellant’s mitigation.

7. The appellant was convicted after the testimony of seven (7) witnesses called by the prosecution and his unsworn defence.

8. I have perused the court record and clearly, the trial court considered all the mitigating factors that the appellant wants the court to reconsider. The court took note of the fact that the appellant was a first offender, the sole bread winner of his family but also considered the seriousness of the offence and preferred a determent sentence. Sentence is a discretion of the trial court which this court can only interfere with sparingly based on certain principles. In Ogolla s/o Owuor vs. Republic (1954) EACA 270, the East Africa Court of Appeal pronounced itself as follows:-“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”

9. In addition the court must consider the criterion “that the sentence is manifestly excessive in view of the circumstances of the case.”

10. In Bernard Kimani Gicheru vs. Republic (2002) eKLR, the Court stated as follows:-“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 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 states is shown to exist.”

11. Bearing in mind the principles set out in the above decisions, I do note that the trial court had taken into account the appellant’s mitigation. The offence is a very serious one and must be discouraged at all costs. Under Section 8(4) the Sexual Offences Act, upon conviction one is liable to a sentence of not less than fifteen (15) years. The appellant was handed eleven (11) years imprisonment. Since the courts are moving away from minimum sentence which curtails the court’s discretion in sentencing and in exercise of this court’s discretion, I hereby set aside the sentence of 15 years, I substitute the sentence with nine (9) years imprisonment. The appeal succeeds to that extend. Sentence will run from 5/5/2020 when the appellant was sentenced by the trial court.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 19TH DAY OF OCTOBER, 2022R. WENDOHJUDGEJudgment delivered in the presence ofMr. Mulama, for the State.Appellant present in person.Evelyne Nyauke – Court Assistant