[2022] KEHC 14910 (KLR)

Masaa v Republic (Criminal Appeal E031 of 2021) [2022] KEHC 14910 (KLR) (2 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14910 (KLR)

Republic of Kenya

In the High Court at Kitui

Criminal Appeal E031 of 2021

RK Limo, J

November 2, 2022

Between

Timothy Kingesi Masaa

Appellant

and

Republic

Respondent

(Appeal vide Sexual Offence Case No. 3 of 2016 vide Mwingi Criminal Case No. 96 of 2014)

Judgment

1. Timothy Kingesi Masaa, the appellant herein was charged and convicted of the offence of defilment contrary to section 8(1) (3) of the Sexual Offence Act No 3 of 2006 vide Mwingi Criminal Case No 96 of 2014.

2. The particulars of the offence were that on the 7th October, 2014 at [Particulars Withheld] market, Masinga Machakos County he intentionally and unlawfully caused his male organ to penetrate the female organ namely vagina of (name withheld) a child aged 15 years.

3. The appellant had denied committing the offence but after trial, he was found guilty and convicted. The trial court sentenced him to serve 20 years in jail because of provisions of section 8(1) (3) of the Sexual Offence Act.

4. The appellant was aggrieved by both the conviction and the sentence and filed this appeal raising five grounds but at the hearing of the appeal he abandoned his grievance over conviction and pleaded with this court to consider the sentence meted out and find that the same was excessive. He expressed remorsefulness stating that he did not know that the girl was school going and that it was the girl who told him to move in with him.

5. He claimed that he was reformed since he has been in jail since 2015 and asked for leniency.

6. The state through Mr Okemwa opposed this appeal contending that the law prescribed a minimum sentence of 20 years. He insisted that the girl was 15 years old and submitted that the appellant being a matatu conductor should have first made attempts to find out about the age of the girl before taking her as a wife. Mr Okemwa insisted that the sentence meted out was justified and should be upheld.

7. This court has considered this appeal which is basically on sentence and whether or not the provision of section 8(3) of Sexual Offence Act took away the discretion of the court and if so whether it is constitutional.

8. There is no dispute from the facts emanating from the evidence tendered that the complainant had on her own volition disappeared from home and went to cohabit with the appellant. The appellant does not deny taking the complainant in as a wife. In fact, when he was arraigned he admitted the offence but pleaded that we did not know that the complainant was school going. That is what we maintained even during the hearing of this appeal. What caught the attention of this court was that he says he did not sleep with the girl the first night because she was a stranger to him and was apprehensive. He admitted that he only began having sexual encounter with her the following day adding that he was arrested on the 3rd day. That in my view shows that the appellant really was not up to taking advantage of the girl and the chances are that it’s the girl that convinced him to marry her.

9. This court has seen the sentiments expressed by the trial court when the appellant was given a chance to mitigate. The trial court noted that though the appellant appeared genuinely remorseful, there was nothing it could do because the law provided for a minimum sentence of 20 years.

10. The purposes and objectives of sentencing as per guidelines on Judiciary Sentencing Policy is to ensure that the sentence meted out acts as a deterrence yes but it must be commensurate and proportionate to the crime committed and the manner it is committed. The question posed is whether the 20-year jail term was proportional or commensurate with the offence committed and how it was committed in this instance. The complainant and the appellant were both found naked in bed by the girl’s parents at the appellant’s home and in fact both of them were arrested and taken to the Police Station. Upon reaching the station of course, the girl left with her parents and the appellant was left to face the music alone.

11. I have looked at the mitigation and circumstances of this case and it is my conviction that the trial court most probably would not have sent the appellant to jail for 20 years had Section 8(b) not taken away his discretion.The decision in Francis Karioko Muruatetu (I) had illustrated it clearly that a law that taketh away the discretion of a court is a bad law and for a while it was applied across the board because it was a momentous decision until Muruatetu (II). However, courts have now at different levels found that indeed any law that takes away the discretion of a trial court met out a sentence commensurate with the offence and how it was executed is bad and unconstitutional. In Maingi and 5 Others versus Director of Public Prosecution & Another (Machakos High Court Petition E017 of 2021) Odunga Judge (as he then was) found that a law that takes away discretion from a trial court offends article 28. Citing the decision in Republic versus Scott (2005) NSWCCA 152 by Howie J Grove & Barr JJ He noted;“‘‘There is a fundamental and immiscible principle in sentencing that this sentence imposed must intimately 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.’’

12. This court is also guided by a court of Appeal decision in Joshua Gichuki Mwangi versus Republic (Nyeri Court rendered itself on the constitutionality of the section 8 (3) of the Sexual Offence Act and expressed its reservations thus;“This appeal epitomizes for the umpteenth time the unfair consequences that are inherent in a critical enforcement of the Sexual Offences Act, No 3 of 2006 (the Act) and the unquestioning imposition of some of its penal provisions which could easily lead to a statute-backed purveyance of harm, prejudice and injustice, quite apart from the noble intentions of the legislation. The case poses one more time whether it is proper for courts to enforce with mindless zeal that which offends all notions of rationality and proportionality.So understood, we would think that had the two courts below properly directed their minds to the appellant’s defense and the totality of the circumstances of this case, they would in all likelihood have arrived at a different conclusion on it. It was a non-direction that they did not do so, rendering the conviction unsafe.We need to add as we dispose of this appeal that the act does cry out for a serious re-examination in a sober, programmatic manner. Many other jurisdictions criminalize only sexual conduct with children of a younger age than 16 years. We think it is rather unrealistic to assume that teenagers and maturing adults in the sense employed by the English House of Lords in Gillick vs West Norfolk And Wisbech Area Health Authority [1985]3 ALL ER 402, do not engage in, and often seek sexual activity with their eyes fully open. They may not have attained the age of maturity but they may well have reached the age of discretion and are able to make intelligent and informed decisions about their lives and their bodies. That is the mystery of growing up, which is a process, and not a series of disjointed leaps…’’

13. The Court of Appeal further observed that while there are cases of sexual nature that deserve no less than minimum sentence prescribed, they were alive to the decision in;Athamus Lijodi versus Republic[2021] where it was held;“‘‘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 hirtheto deemed as minimum sentences. (See for instance Evans Wanjala Wanyonyi versus 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 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.’’

14. The court also gave another example which is quite similar to the situation at hand that is in the case of Korir versus Republic(Criminal Appeal No 100 of 2019 where the sentence was reduced and the court noted;“‘‘The appellant has contended that he was a first offender and a young man whose life is greatly affected by the imprisonment and that while in prison he had taken full advantage of the rehabilitative programmes offered in the correctional facility. It is also not lost on this court that the appellant has been in custody since February 2015, a period of slightly over 6 years to date. We also note that the appellant had serious intentions of marrying GC, a girl aged 15 years.However, the law does not allow for the marriage of girls below the age of 18 years.In our considered opinion and in view of the above, these factors coupled with the facts in this case mitigate for leniency. The appellant had the intention of marrying PW1. He took her to his grandparents’ place and left her to stay there. In applying the Muruatetu decision (Supra) that removed the bar to discretion posed by minimum sentences, and considering that the appellant has been in custody for slightly over 6 years, we consider the period that he has served to be sufficient sentence in the circumstances of this case.’’

15. The court of appeal found that it was untenable on the basis of separation of powers for legislature to arrogate itself the power to determine an appropriate sentence.The court observed; -“‘‘The imposition of mandatory sentences by the legislature conflicts with the principle of separation of powers, in view of the fact that the legislature cannot arrogate itself the power to determine what constitutes appropriate sentences for specific cases yet it does not adjudicate particular cases hence cannot appreciate the intricacies faced by judges in their mandate to dispense justice. Circumstances and facts of cases are as diverse as the various cases and merely charging them under a particular provision of laws does not homogenize them and justify a general sentence.This being a judicial function, it is impermissible for the legislature to eliminate judicial discretion and seek to compel judges to mete out sentences that in some instances may be grossly disproportionate to what would otherwise be an appropriate sentence.’’

16. From the foregoing this court finds the sentence meted out against the appellant was disproportionate to what he did. The mitigating circumstances indicated that he deserves some leniency that of course should consider the fact that he should learn his lessons. He has been in jail for now close to 8 years and must have learnt his lessons. In the circumstances, this court finds merit in this appeal or sentence. The 20 years’ sentence imposed it set aside and in its place the appellant is sentenced to serve 10 years in jail. He was in custody for almost a year awaiting trial. So one year will be subtracted from 10-year term pursuant to section 333 of Criminal Procedure Code. He is however, cautioned to learn his lessons and ensures that his actions in future are not against the laws of the land.

DATED, SIGNED AND DELIVERED AT KITUI THIS 2ND DAY OF NOVEMBER, 2022. HON. JUSTICE R. K. LIMOJUDGE