[2022] KEHC 12183 (KLR)

Koech v Republic (Criminal Appeal E021 of 2021) [2022] KEHC 12183 (KLR) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12183 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Criminal Appeal E021 of 2021

F Gikonyo, J

May 6, 2022

Between

Robert Kipngetich Koech

Appellant

and

Republic

Respondent

(From the conviction and sentence of Hon.W.K. Kitur (R.M) in Kilgoris PM SOA No. 31 of 2019 on 16th November 2020)

Judgment

[1]On November 16, 2020, the trial court convicted the appellant and sentenced him to serve 13 years’ imprisonment for defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act No 3 of 2006.

[2]Being dissatisfied with the said sentence he preferred an appeal as set out in his grounds of appeal:i.That this appeal is for mitigation.ii.That he is a first offender and he is remorseful of what he did, he prays to the court for leniency.iii.That his family is suffering because he was the only breadwinner.iv.That he promises to be a good citizen once the court allows his mitigation to reduce his sentence or accord him a non- custodial sentence.

[3]He prayed that this court allows his grounds of mitigation.

[4]The matter was canvassed by way of written submissions.

Appellant’s Submissions [5]The appellant submitted that the trial court was proper in passing the sentence as it did, however, the sentence meted on him was harsh in the circumstances. Based on his age and mitigation, he beseeched this court to reduce his sentence to a manageable level. He relied on the cases of Okeno Vs Republic [1972] EA 32, Gilbert Kiptum Ngetich Vs Republic 2015 At Kilgoris, Evans Wanjala Wanyonyi Vs Republic [2019] eKLR, Christopher Ochieng Vs Republic [2018] eKLR, Muruatetu Case, Jonah Isinha Case, Mohammed Omar Muhamed, Muhamed Sarah Noor, Dismas Wafula Kwake Case and Stephen Mugendi Ndwiga Case.

The Respondent’s Submissions. [6]Duncan Ondimu, OGW, senior principal prosecution counsel submitted that this being a first appeal, the duty of this court is laid under section 379 of the Criminal Procedure Code. The jurisdiction is limited to matters of law. He cited the case of David Njuguna Wairimu V Republic [2010] eKLR.

[7]The respondent submitted that the court should evaluate evidence in relation to sentence vis-a-vis the law. The object of punishment is the prevention of crime and deterrence. He relied on Section 8 and 8(4) SOA, 216 and 329 CPC, Kamaro Wanyingi vRepublic[2008] eKLR and Republic V Thomas Gilbert Cholmondeley [2009] eKLR

[8]The respondent submitted that the state has to prove beyond reasonable doubt the existence of aggravating factors and the accused is to prove the mitigating factors. The factors the court has to consider were cited in the cases ofS vMakwanyane[1995] (3) SA 391 Para 46 and The State Vs Mpho MpelegangCthlb-000008-07 and The State V Muller, Ivan, Andries Case No. 2 Sh98/ 2005 High Court of South Africa.

[9]According to the DPP, the offence herein is a serious one but the court misapplied the provisions of the Act.

[10]Further submissions; that the victim went through a traumatizing experience and such experience will stick to her memory for several years.

[11]Thus, the respondent took the view that; the aggravating circumstances outweigh his mitigating factors. The appellant stated that he was remorseful and had siblings who depended on him as their sole bread winner. The victim as a result became pregnant and the appellant chased her away.

[12]The respondent submitted that the Muruatetu case is not applicable other offences other than the punishment under section 204 of the penal code. The case cannot therefore apply under Sexual Offences Act. The question of other mandatory sentences was never placed before the supreme court meaning there was no direct challenge of the same before the supreme court. Therefore, the trial court was wrong in applying the Muruatetu’s case in the present circumstances. He relied on the case of Francis Karioko Muruatetu & Another V Republic & 5 Others [2016] eKLR, The National Assembly Hansard of April 26 20006, hon Lady Justice Njoki S. Ndungu, CBS, EBS, “a critique of the judicial approach on sexual offences and the age of consent, figures and challenges,” presented at judges’ colloquium, 2019, G N v Republic [2019] eKLR, R V Ipeelee [2012] R.C.S.

[13]In conclusion, the state submitted that the sentence passed by the trial court was not proper in the present circumstances and thus should be enhanced to the period provided for under section 8 (4) of the Act.

Analysis and Determination. Issue [14]This is an appeal on sentence. The issue arising from the grounds of appeal, evidence adduced in the lower court and the respective parties’ submissions is;

i. Whether the sentence was manifestly harsh and excessive of sentence [15]In this case, the complainant was below the age of 17 years at the time of the offence. The appellant was, thus, sentenced under section 8(4) of the Act which provides:“A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”

[16]The appellant argues that 13 years’ imprisonment imposed on him was harsh and excessive. Citing Court of Appeal decisions, he argued that the penalty prescribed was mandatory sentence which deprives the court discretion in sentencing. He therefore asked the court to consider his mitigation and accord fair sentence.

[17]The respondent argues that the said sentence is not proper for it is not in accordance with section 8(4) of the Sexual Offences Act, and should be enhanced to 15 years as prescribed in law. The respondent also submitted that the trial court relied on Muruatetu decisional law in passing sentence which was improper as the said decision only applied to the mandatory death sentence prescribed in section 204 of the Penal Code.

[18]The latter issue is subject of several appeals of which Mr Ondimu, for DPP has applied before me for certification under article 165(4) of the Constitution that the matters raise substantial question of law under article 165(3)(b) of the Constitution and should be heard by uneven number of judges being not less than three assigned by the Chief Justice.

[19]Accordingly, I will state only matters relevant to determination of this appeal.

[20]Sentencing is exercise of discretion by the trial court which should never be interfered with unless the trial court acted upon wrong principles or overlooked some material factors or took into account irrelevant factors or short of this, the sentence is illegal or is so inordinately excessive or patently lenient as to be an error of principle (SeeShadrack Kipkoech Kogo Vs R, andWilson Waitegei vs Republic [2021] eKLR)

[21]Of important considerations are: first, the evidence show that the victim of the offence was a child of less than 17 years when the appellant started having sex with her. Second; she was 16 years when she left school due to this illicit relationship. Thus, prospects of progression in education were curtailed by the illegal act of the appellant. Despite opposition and protest from the parents of the child, the appellant insisted on paying dowry. All along, the appellant knew this was a child and was in school. Third, the appellant lured her into the illicit relationship with a promise of marriage, only to satisfy his lustful desire, and to leave her wounded after demented enjoyment for two years. This is a case of child marriage. Fourth, she became pregnant out of the relationship. This is a permanent scar of the defilement. Certainly, she will forever live with the shame and great mental trauma caused to her by this savage act of sexual debauchery. Fifth, this is a serious offence of which extreme societal desire to get rid of society of these wickedness and sexual perversion has been expressed publicly and formally through Sexual Offences Act. See James Okumu Wasike (2020) eKLR.

[22]In aggravation the appellant used an unfair advantage to secure and satisfy his sexual desires on the minor. The court considers the offence to be quite egregious.

[23]The grave circumstances may impulsively and quickly push for enhancement of sentence. However, I do note that the trial court arrived at the sentence after taking into account the circumstance of this case including the fact that the appellant had been in custody for about 2 years; and found the sentence of 13 years to be appropriate. In essence, upon taking account of time spent in custody under section 333(2) of the Criminal Procedure Code, the sentence of 13 years’ imprisonment was to commence from the date of sentence; this is proper and justified in law and in the grave circumstances of the case.

[24]In these circumstances, there is no reason for enhancing or reducing the sentence. It is appropriate sentence in the circumstances of the case.

[25]For the avoidance of doubt, the sentence of 13 years’ imprisonment commences from the date of sentencing.

[26]In the upshot, the appeal lacks merit and is dismiss. Orders accordingly.

[27]Right of appeal explained.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 6TH DAY OF MAY, 2022F. GIKONYO M.JUDGEIn the Presence of:1. Mr. Ondimu for DPP2. Mr. Kasaso – CA3. The appellant