[2022] KEHC 3290 (KLR)

Masuvi v Republic (Criminal Revision 70 of 2019) [2022] KEHC 3290 (KLR) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3290 (KLR)

Republic of Kenya

In the High Court at Kitui

Criminal Revision 70 of 2019

RK Limo, J

July 7, 2022

Between

Charles Kyusya Masuvi

Applicant

and

Republic

Respondent

(Being an Application dated 14th October, 2019 for Review of Sentence/Order made on 1st October, 2019 by the trial court in Mutomo SPM’s Criminal Case No. 2 of 2019)

Ruling

1. Before Me, is an application dated October 14, 2019 where the applicant herein Charles Kyusa Masuvi is asking this court for review of sentence/order made on October 1, 2019 by the trial court.

2. This court has called for the proceedings from the Lower Court to wit Mutomo Senior Principal Magistrate’s Court Sexual Offence Case No. 2 of 2019 where the applicant faced two counts of defilements.

3. In the first count, the applicant was charged with defilement contrary to Section 8(1) as read with Section 8(2) of theSexual Offence Act with the particulars that on 7th day of February, 2017 at Simisi location Simisi sub-location, Ikutha within Kitui County, he defiled a girl (name withheld) aged 7 years.

4. In Count II, the applicant was charged with attempted defilement contrary to section 9(1) as read with Section 9(2) of theSexual Offence Act. No. 3 of 2006. The particulars in Count II, were that; on the same date and place, the applicant he intentionally and unlawfully attempted to cause his penis to penetrate the vagina of (name withheld) a girl aged 11 years.

5. The applicant also faced alternative charges in both counts but since he was convicted on the principal counts, this ruling will concentrate on the main charges.

6. There was a twist in this matter because after this court had called for the lower court file for purposes of the application for revision, the applied to withdraw his application perhaps sensing that he had made a blunder by making the application for revision when legality of the sentence meted out on him was questionable.

7. This court noted the illegality which I will delve into shortly. This court invited both the applicant and therespondent to make representations about the same.

8. The applicant was charged with two counts of the offence of defilement and attempted defilement. The trial court found him guilty on both counts and sentenced him to 10 years in each Count with both sentences to run concurrently which sentence presented two problems in regard to legality of the sentences.

9. The first issue is the ten-year sentence. Section 8(2) of the Sexual Offence Actprovides that anyone found guilty of defiling a child aged 11 years or less shall be sentenced to life imprisonment. The trial court’s hands were tied and even if the hands were not tied by the prescribed sentence, it should have stated why it was sentencing a convict for just 10 years when the prescribed term is life.

10. Secondly, the offences were committed against two separate children. The Order that both sentences were to run concurrently was irregular because the trial court assumed that the victims were one and the same just because the offences were committed on the same place and time. That was clearly erroneous because the offences were committed against two separate victims.

11. Section 362 of the Criminal Procedure Code(CPC) is clear on the scope of revision in criminal trial as follows: -‘‘The High court may call for and examine the record of any Criminal proceedings before any subordinate court for the purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinatecourt.’’Section 364 of the Criminal Procedure Code further provides that;i.In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may;a.In the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;b.In the case of any other order other than an order of acquittal, alter or reverse the order………...…..’’

12. This court was told by the applicant that he wished to withdraw the application herein but the obvious illegality on the sentences meted out could not possibly be disregarded.

13. When the applicant was given a chance to make representation about the sentences meted out, he stated that he had initially appealed and the high court ordered for a retrial. He claims that upon retrial, he was not found guilty reportedly because he had no case. However, a perusal on the lower court file the record reveals otherwise. He was found guilty on both counts and convicted.

14. The respondent through Mr. Okemwa submitted that the sentence meted out against the applicant was unlawful. He further contended that the sentences ought to have ran consecutively rather than concurrently.

15. The sanction provided for attempted defilement under section 9(2) of Sexual Offence Act is a jail term of not less than 10 years. On the other hand, section 8(2) of the Sexual Offence Act provides as follows: -‘‘a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentences to imprisonment for life.’’

16. The trial court, as observed above upon finding the applicant guilty of both counts duly rendered convictions on both counts and on sentence the trial court stated;‘‘I have considered the POR filed and accused mitigation. He is sentenced to 10(ten) years imprisonment in each count. Sentence to run concurrently.’’The trial court could have lawfully sentenced the applicant to 10 years in respect to 2nd count but on the 1st Count it was imperative to pass the sentence provided by law and if he was minded to pass a lesser sentence either on the then position in Francis Muruatetu case the trial court ought to have given reasons why it was passing a lesser sentence. It was also irregular to order the two sentences to run concurrently when the victims were different and when the offences committed was also defilement.In the premises, this court under section 364 of the Criminal Procedure Code hereby quashes the sentences meted out by the trial court on grounds of their legality as aforementioned in its place the applicant will now serve life imprisonment on 1st Count as provided under section 8(2) of Sexual Offence Act. In regard to the 2nd Count, he will serve 10 years’ imprisonment and in view of the nature of the sentence in the first count, the sentence in the 2nd count is hereby suspended. He has 14 days Right of Appeal.

DATED, SIGNED AND DELIVERED AT KITUI THIS 7TH DAY OF JULY, 2022. HON. JUSTICE R. K. LIMOJUDGE