[2024] KEHC 16060 (KLR)

Maingi v Republic (Criminal Appeal E030 of 2023) [2024] KEHC 16060 (KLR) (18 December 2024) (Judgment)

Neutral citation: [2024] KEHC 16060 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E030 of 2023

MW Muigai, J

December 18, 2024

Between

Danson Mwanzia Maingi

Appellant

and

Republic

Respondent

(Being an Appeal against the Sentence in Machakos Chief Magistrate’s Court in Cr. S.O No. E003 of 2021 Delivered on 25th October 2021)

Judgment

Background 1. The Appellant herein Danson Mwanzia Mwaniki was charged with an offence of Defilement contrary to Section 8(1) as read 8(2) of the Sexual offences Act No.3 of 2006.

2. The particulars of the offence being that on diverse dates between the 14th January 2021 and 16th January 2021 at (Particulars withheld) village, (Particulars withheld) sub location in (Particulars withheld) Sub-County Machakos County intentionally and unlawfully caused his penis to penetrate the vagina of P.N.M, a child aged 10years.

3. In the Alternative Charge the Appellant herein was charged with the offence of committing an indecent Act with a child contrary to Section 11(1) of the Sexual offences Act No.3 of 2006.

4. The particulars of the offence being that on diverse dates between the 14th January 2021 and 16th January 2021 at (Particulars withheld) village, (Particulars withheld) sub location in (Particulars withheld) Sub-County Machakos County intentionally and unlawfully touched the vagina of P.N.M, a child aged 10years using his penis

5. Plea was taken and charges read to the Accused person and a plea of Not Guilty was entered.

6. On 30/8/2022 the accused indicated that he wanted to accept the charges in which the charges were read to him in Kiswahili and he agreed to the charges by stating “ni ukweli” and a plea of guilty was entered.

7. On the same date, the facts were read to the Accused person which he admitted to and conviction was entered on his own plea of guilt.

8. The Prosecution indicated he had no records, he mitigated that he had smoked and was drank when he went home. He said he was 1st Offender and sought forgiveness for commission of the offence.

Judgment Of The Trial Court 9. The Trial Court on the accused’s own plea of guilty of the offence of defilement, sentenced him to serve Ten (10) years imprisonment.

Appeal: 10. Aggrieved by the Judgment the appellant filed his amended Petition of appeal based on the following grounds;1. That the learned Trial Magistrate erred in law and in facts for failing to consider the appellant’s mitigation during the sentence as provided for under section 216 and 329 of the Criminal Procedure Code hence contravenes the appellant’s rights to a fair Trial as provided for under Article 50 of the Constitution.

2. That the Learned Magistrate erred in law and facts in failing to consider the appellant’s age and being a first offenders and the circumstances of the case therefore mete a harsh and unproportionate sentence hence violation of the appellant’s rights under Article 50 of the Constitution.

11. The Appeal was canvassed by way of written submissions.

Written Submissions Appellant Submissions 12. The Appellant relied on Section 333 (2) of the Criminal Procedure Code that sentencing should take into account the period spent in custody and the cases of Petition No.E017 of 2021, Philip Mueke and others on mandatory minimum sentences.

13. He also relied on Section 26(2) and Joseph Ndai Musyoki vs Republic and the case of Julius Amollo Oremo vs Republic

14. He prayed that the appellate court see the injustices done by the Trial Court and redeem his conviction to a legal sentence of not more than 7 years imprisonment.

Respondent’s Submissions 15. On behalf of the Respondent, it was submitted that the sentence of 20 years imprisonment is not excessive bearing in mind the victim’s age of 10 years.

16. He relied on the case of Benard Kimani Gacheru vs Republic[2002], Mokela vs the State (135/11] [2011] and the case of Ogolla s/o Owuor vs Republic (1954)

17. It was finally submitted that the sentence against the appellant was sufficient and appropriate.

Determination 18. I have considered the Appeal, the Trial Court record and the submissions of parties on record.

19. This is a first Appeal and in the case of Okeno v Republic [1972] EA 32 the court stated:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate's findings should be supported. In doing so, it should make allowance for the fact that the Trial Court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. ”

20. The issue for determination is whether the Court should review the sentence of 20 year imprisonment imposed by the Trial Court.

21. This Court is guided by the principles in the Court of Appeal case of Bernard Kimani Gacheru vs. Republic [2002] eKLR where it was 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 stated is shown to exist.”

22. The Court of appeal also rendered itself as follows on sentences in sexual offences in the case of Athanus Lijodi vs. Republic [2021] eKLR“On the issue of sentence, we reiterate that the life sentence imposed by the trial magistrate and affirmed by the High Court is not unconstitutional and can still be meted out in deserving cases Muruatetu’s case (supra) notwithstanding. This Court has on many occasions invoked the Muruatetu decision to reduce sentences that were hitherto deemed as minimum sentences. (See for instance Evans Wanjala Wanyonyi v Republic [2019] eKLR). Having said that however, we must hasten to add that this Court will uphold a sentence prescribed by the Sexual Offences Act if upon proper exercise of sentencing discretion and consideration of the facts of each case, such sentence is deserved or merited.”

23. The same court in the case of Dismas Wafula Kilwake Vs. Republic [2019] eKLR stated as follows;“Being so persuaded, we hold that the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.”

24. In Maingi & 5 others Vs.Director of Public Prosecution & Another (Petition No.E117 of 2021) (2022) KEHC 13118 (KLR) the Petitioners who were convicts serving offences under Sexual Offences Act No 3 of 2006 sued the Attorney General and sought for declaration that the mandatory nature of sentence under the Sexual Offences Act were unconstitutional as it fettered the discretion of Judges and Magistrates in meting out sentence.

25. Justice G.V Odunga (as he then was ) vide his considered judgment dated 17th May, 2022 did find that –“to the extent that the Sexual Offences Act prescribed minimum mandatory sentences, with no discretion to the trial court to determine the appropriate sentence to impose, such sentence fall foul of Article 28 of the Constitution. However, the courts are at liberty to impose sentences prescribed thereunder so long as the same are not deemed to be mandatory minimum prescribed sentences.”

26. The provision of section 8(1) as read together with provisions of section 8(2) of the Sexual Offences Act No 3 2006 and legislation that was in force before commencement of the Constitution of Kenya 2010 must be considered with adaptation, qualification and exception when it comes to the mandatory minimum sentence and in particular when the said sentences do not take into account the dignity of the individual as mandated under Article 27 of the Constitution and as appreciated in the Francis Muruatetu case and applied by courts in several cases . See Christopher Ochieng Vrs Republic Kisumu CA Criminal Appeal No 202 of 2011 and Jared Koita Injiri Vrs Republic Kisumu CA Criminal Appeal No 92 0f 2104.

27. Sentencing is a discretion of the court of law but the court should look at the facts and the circumstances in the entirety so as to arrive at an appropriate sentence.

28. The Court of Appeal in Thomas Mwamba Wanyi Vs Republic (2017)eKLR cited the decision of the Supreme Court of India in Alister Antony Pereira Vs The state of Maharastra at paragraph 70 – 71 where the court held;“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate and proportionate sentences commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles; twin objective of sentencing policy is deterrence and correction. What sentence would meet the end of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of crime, motive for the crime, nature of the offence and all the attendant circumstances. The principle of proportionality by sentencing a crime done is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment must bear relevant influence in determining the sentence of the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”

29. In Francis Karioki Muruatetu & another Vs Republic the Supreme Court did provide guidelines and mitigating factors in re-hearing of sentence. The Judiciary Sentencing Policy Guidelines list the objective of Sentencing At. Paragraph 4. 1 they include the gravity of the offence, the threat of violence against the victim, the nature and type of weapon used by the applicants to inflict harm.

30. Having considered the sentence meted out and circumstances of this case and also having considered that the said Section 8(2) Of The Sexual Offences Act No 3 Of 2006 which provides;(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.for fettered the courts discretion in sentencing. I find that the sentence was reasonable given proportionality between the sentence passed 20 years instead of life imprisonment for defilement of a child aged 10 years old which is the crime committed.The circumstances from the facts are that he defiled his own step daughter and was caught in the act after the victim screamed for help. There is no excuse whatsoever. The appellant was the step father to the child, he was the father figure that ought to have protected the child from any harm or danger but instead he was the number one threat that child. This is a very serious crime by a person the victim trusted most, a family member and, in my view, requires retribution.The Appellant was convicted and sentenced against his own plea of guilt. In Republic vs Scott (2005) NSWCCA 152 Howie J Grove & Barn J J it was stated;“There is a fundamental and immutable principle of sentencing, that is, sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed… one of the purposes of punishment is to ensure that an offender is adequately punished… a further purpose is to denounce the conduct of the offender”.The Appellant was accorded fair trial by the Trial Court in plea-taking conviction & sentence and the Trial Court exercised discretion and meted out the appropriate sentence in the circumstances. Article 50 of Constitution & section 216 & 329 CPC were considered.

Disposition 1. The Upshot is that the appeal against the sentence lacks merit and is hereby dismissed.

It is so ordered.

JUDGMENT DELIVERED SIGNED & DATED IN OPEN COURT ON 18/12/2024 IN MACHAKOS HIGH COURT (VIRTUAL/ PHYSICAL CONFERENCE)M.W.MUIGAIJUDGE