[2022] KECA 1097 (KLR)
The Court of Appeal held that, following constitutional challenges and evolving jurisprudence, courts retain discretion in sentencing under the Sexual Offences Act, but such discretion must be exercised judiciously. In this case, the aggravating circumstances—including the victim's young age, repeated defilement,...
Source-derived case information.
- Citation
- [2022] KECA 1097 (KLR)
- Parties
- Appellant: George Muchika Lumbasi; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 135 of 2016
- Procedural Posture
- Criminal Appeal / Second Appeal on Sentence Only
- Outcome
- appeal dismissed
- Judges
- PO Kiage, M Ngugi, F Tuiyott
- Legal Topics
- Sentencing Discretion, Mandatory Minimum Sentences, Defilement, Sexual Offences Act, Second Appeal, Aggravating Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Muchika Lumbasi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal on Sentence Only
Legal Issues
- 1 Whether the mandatory minimum sentence for defilement under the Sexual Offences Act removes judicial discretion in sentencing.
- 2 Whether the sentence imposed on the appellant was unlawful or manifestly excessive.
- 3 Whether the appellate court has jurisdiction to interfere with the sentence on a second appeal.
Ratio Decidendi
The Court of Appeal held that, following constitutional challenges and evolving jurisprudence, courts retain discretion in sentencing under the Sexual Offences Act, but such discretion must be exercised judiciously. In this case, the aggravating circumstances—including the victim's young age, repeated defilement, physical and psychological harm, and threats—render the minimum sentence not only lawful but also deserved. The sentence imposed was neither unlawful nor manifestly excessive, and thus there was no basis for appellate interference. The appeal was dismissed, and the life sentence upheld.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The sentence of life imprisonment is upheld.
Full Case Text
Judgment text and source record
23 paragraphs
Lumbasi v Republic (Criminal Appeal 135 of 2016) [2022] KECA 1097 (KLR) (7 October 2022) (Judgment)
Neutral citation: [2022] KECA 1097 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Criminal Appeal 135 of 2016
PO Kiage, M Ngugi & F Tuiyott, JJA
October 7, 2022
Between
George Muchika Lumbasi
Appellant
and
Republic
Respondent
(Being an appeal from a conviction & sentence of the High Court of Kenya at Kakamega (E. C. Mwita, J) dated 18th August, 2016 in HCCRA NO. 17 OF 2016 Criminal Appeal 17 of 2016 )
Judgment
1. George Muchika Lumbasi, the appellant, is serving a life sentence after a conviction for the offence of defilement of a child contrary to section 8(1) as read with section 8 (2) of the Sexual Offences Act.
2. This second appeal is on sentence only. The appellant states that he is remorseful and seeks leniency. He also submits that this Court in Christopher Ochieng –vs- Republic [2018] eKLR following the Supreme Court decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR held that the mandatory prescription of a sentence cannot take away the discretion of a sentencing Court.
3. Miss. Lubanga Caroline Prosecution Counsel appearing for the State, citing Muruatetu (supra) urged this Court to exercise its discretion but asked us to consider some aggravating factors. The tender age of seven years of the victim; that the appellant defiled the minor three times and that the appellant threatened to kill the victim.
4. A second appeal is an appeal on issues of law only (Njoroge –vs- Republic [1982] KLR 388) and a sentence can only be an issue of law if it is an illegal sentence. Severity of a sentence would be a question of fact and one that cannot be properly taken up in a second appeal (see Kenneth Kimani Kamunyu v Republic[2006] eKLR).
5. We think that following the successful constitutional challenge in Petition No. E017 of 2021: Philip Mueke Maingi & 5 others v Director of Public Prosecutions and another on the restrictions that the minimum sentences in the Sexual Offences Act places on sentencing discretion, which is not inconsistent with Muruatetu, this court would have the latitude, as a matter of law, to review the sentence imposed by the trial court in this matter and upheld by the first appellate court. We consider that decision, although of the High Court, to be persuasive as it is also consistent with a long line of jurisprudence by this Court (see for example Dismas Wafula Kilwake v Republic [2019] eKLR,Jared Koita Injiri v Republic [2019] eKLR, Christopher Ochieng v Republic [2018] eKLR andDaniel Kipkosgei Letting v Republic [2021] eKLR.)
6. Whilst the appellant says that he is remorseful and prays for leniency, we have no doubt in our minds that this is one instance when the minimum sentence is deserved. The victim was a girl of seven (7) years. The sexual assault left her with serious injuries including a torn hymen. She suffered an infection to her urinary tract. The appellant defiled the child on no less than three occasions. On one occasion, he forced a handkerchief into her mouth so as to muffle any noises of distress from her. In addition, he threatened her. This was a really heinous crime, callous in the extreme, and traumatic to the victim.
7. The sentence imposed was neither unlawful nor manifestly excessive. It is in fact deserved and we shall not interfere with it. We dismiss the appeal.
DATED AND DELIVERED AT KISUMU THIS 7THDAY OF OCTOBER, 2022. P. O. KIAGE..................................JUDGE OF APPEALMUMBI NGUGI..................................JUDGE OF APPEALF. TUIYOTT..................................JUDGE OF APPEALI certify that this is atrue copy of the original.DEPUTY REGISTRAR