[2019] KEHC 5539 (KLR)
The court found that the appellant unequivocally pleaded guilty to the offence of rape and did not challenge the conviction. The trial court considered the appellant's status as a first offender and his remorse, imposing a sentence of fifteen years, which is above the statutory minimum but below the maximum of life...
Source-derived case information.
- Citation
- [2019] KEHC 5539 (KLR)
- Parties
- Appellant: Lameck Omenge Change; Respondent: The State
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 16 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; sentence upheld
- Judges
- EM Muchoki
- Legal Topics
- Rape Offence, Sentencing Principles, Guilty Plea, Sexual Offences Act, First Offender, Sentence Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Lameck Omenge Change
Appellant
The State
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of fifteen years imprisonment for rape was excessive or warranted reduction.
- 2 Whether the circumstances of the offence and the appellant's status as a first offender justified interference with the sentence.
Ratio Decidendi
The court found that the appellant unequivocally pleaded guilty to the offence of rape and did not challenge the conviction. The trial court considered the appellant's status as a first offender and his remorse, imposing a sentence of fifteen years, which is above the statutory minimum but below the maximum of life imprisonment. The appellate court held that the circumstances of the offence warranted the sentence imposed and that there was no justification to interfere with the trial court's discretion. The seriousness of the offence and the fact that the victim was an adult did not warrant a reduction of sentence. The appeal was therefore dismissed and the sentence upheld.
Court Disposition
appeal dismissed; sentence upheld
Orders
- The appeal is dismissed.
- The sentence of fifteen years imprisonment imposed by the trial court is upheld.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
CRIMINAL APPEAL NO. 16 OF 2017
LAMECK OMENGE CHANGE..............................APPELLANT
VERSUS
THE STATE.............................................................RESPONDENT
{Being an appeal against the Conviction and Sentence of Hon. E. K. Nyutu – PM from the original Nyamira Principal Magistrate’s Court Criminal Case No. 299 of 2015}
JUDGEMENT
The appellant herein was sentenced to fifteen (15) years imprisonment for the offence of Rape contrary to Section 3 (1) (a) (b) as read with Section 3 (3) of the Sexual Offences Act. The particulars of the charge were that on 25th March 2015 at Bundo Sub-location in Nyamira County he intentionally and unlawfully caused his penis to penetrate the vagina of DN without her consent. Initially he pleaded not guilty to the charge but after five witnesses including the victim were heard he changed his plea to guilty. The first time the facts were explained to him he pleaded not guilty but when he next appeared before the court he admitted the facts and he was then convicted and sentenced to fifteen (15) years imprisonment. Being aggrieved he filed this appeal.
This morning Mr. Bwonwong’a, Advocate who recently came on record for the appellant informed this court that the appellant is not challenging his conviction but is only asking that the sentence be reduced. Mr. Bwonwong’a submitted that the person/victim is an adult and that the appellant is a young man who would be more resourceful were he to serve his sentence either on probation or community service. He contended that the appellant has already served three years out of the fifteen years to which he was sentenced. Mr. Bwonwong’a urged the court to allow the appeal.
The appeal was however opposed with Principal Prosecution Counsel Mr. Ochieng submitting that the sentence imposed was within the law. He submitted that rape, irrespective of the age of the victim, is a serious offence. He urged this court to dismiss the appeal and uphold the sentence.
I have considered the submissions by both sides. The appellant unequivocally pleaded guilty to the offence of rape and indeed he does not challenge the conviction. The offence of rape attracts a minimum of ten (10) years imprisonment. The sentence may however be enhanced to life imprisonment depending on the circumstances. In this case the trial court imposed fifteen (15) years imprisonment upon being informed that the appellant was a first offender and him pleading remorse and promising not to commit the offence again. Before he pleaded guilty the victim of the offence had given evidence and it is my finding that the circumstances of the offence warranted the enhancement of the sentence. It is also my finding that given that he was a first offender and that he was remorseful the sentence imposed was reasonable. It was also just given the circumstances of the offence. Rape is rape and it is a serious offence. The fact that the victim of this offence was an adult does not warrant or justify the offender to get away with a slap on his wrist. The sentence could have been enhanced to life imprisonment but he got only fifteen (15) years imprisonment. I see nothing on the record that would warrant me to interfere with the sentence. Accordingly, this appeal is dismissed and the sentence by the trial court is upheld.
Signed, dated and delivered at Nyamira this 10th day of July 2018.
E. N. MAINA
JUDGE