[2020] KEHC 1072 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL APPEAL NO. 3 OF 2019

MCM......................................................APPELLANT

VERSUS

REPUBLIC........................................RESPONDENT

(Being an appeal from the original conviction and sentence in the Chief Magistrate

Court at Kwale Criminal Case No. 47 of 2017 by Hon. P. K. Mutai (RM) dated 23rd October 2017)

Coram: Hon. Justice R. Nyakundi

Mr. Muthomi for the Respondent

Appellant in Person

JUDGMENT

The Appellant was charged with defilement contrary to section 8 (1) (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between April 2016 and 20th May 2017 at [Particulars Withheld] area in Diani location Kwale County with Coast region, the Appellant intentionally caused his penis to penetrate the vagina of SJK, a girl aged 15years.

The Appellant pleaded guilty and was convicted and sentenced to imprisonment for 20 years.

Despite the Appellant being convicted on his own plea of guilt he still appealed against the conviction and sentence and lodged his appeal on the following amended grounds reproduced verbatim: -

a) That the learned trial Magistrate did not consider my mitigation.

b) That the learned trial failed in the rule of law by not seeing that the sentence imposed was harsh and excessive in the circumstances.

c) That the learned trial Magistrate did not consider that it was my first offence over my life.

The Appellant filed written submissions on 4th February 2020 in support of his appeal. His submissions were to wit that the trial magistrate failed to consider his mitigation that he was a first offender and that he was sick, as required under section 329 of the Criminal Procedure Code (CPC) denying him his right to a fair trial. He further submitted that the term “shall be liable” denoted the maximum sentence and that the court may impose a lesser sentence. He relied on the case of Kichanjele s/o Ndamungu vs Rep (1941)8 EAcA 64. Finally, the Appellant submitted that the Sexual Offence Act (SOA) No. 3 of 2006 must be construed in line with the Constitution taking into account the dignity of the individuals as enshrined in Article 27 of the Constitution. He placed reliance on Francis Muruatetu & Ano vs Rep (2017) eKLRand S vs Malgaas =2001 (2) SA 1222 SCA 1235.

The Respondent filed its submissions dated 12th March 2020 on the 24th March 2020 in opposition of the appeal. It was the Respondent’s submission that sentencing was the discretion of the court and that an Appellant court only interfered if the trial court acted on the wrong principles or overlooked some material fact as was held in Charles Ndirangu Kibue vs Republic [2016] eKLR. The Respondent submitted that the elements of defilement were proved, that the Appellant infected the complainant with HIV and that the Appellant tried to hide the complainant to avoid arrest. The Respondent urged that the sentence was neither harsh or excessive but was lenient in the circumstances of the case. Additionally, it was submitted that High Court was endowed with jurisdiction to safe guard the interest of infants as the parent of all infants as held in Yasmin vs Mohammed (1973) EA 370.

Analysis and determination

I have considered the submissions by both parties. It is clear that the appeal is against the sentence only.

It is well established that sentencing is at the discretion of the trial court and an appellate court can only interfere with the sentence under very specific circumstances as was emphasized by the Court of Appeal in Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR where it stated: -

“As what is challenged in this appeal regarding sentence is essentially the exercise of discretion, as a principle this Court will normally not interfere with exercise of discretion by the court appealed from unless it is demonstrated that the court acted on wrong principle; ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive. In Bernard Kimani Gacheru v. Republic, Cr App No. 188 of 2000 this Court stated thus:

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.

(See also Wanjema v. Republic [1971] E.A 493).”

The Appellant was convicted on his own plea of guilty and was sentenced under section 8(3) of the SOA, which provides that: -

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.

From a reading of the above section it is clear that it provides for a mandatory minimum sentence demonstrated by use of the term “not less than”.

The Court of Appeal in Caroline Auma v. Republic Criminal Appeal no 65. Of 2014 (2014) eKLR while discussing mandatory sentences pronounced thus: -

“…. It should be noted that sentencing is an exercise of judicial discretion, and therefore provisions which provide for mandatory sentence compromise that discretion, and are the exception rather than the rule. Thus, where applicable the mandatory sentence must be expressed in clear and unambiguous terms…

Although the word used in section 3 of the Sexual Offences Act is “liable”, the provision is clear that the sentence provided is minimum by use of the words “shall not be less than”,thus giving allowance for discretion on the upper limit and not the lower limit…” (Emphasis mine.)

Guided by the above decision, it is manifest that the sentence imposed on the Appellant was the mandatory minimum and was therefore lawful.

The mandatory nature of sentences under the SOA has come under scrutiny following the decision of the Supreme Court in Francis Karioko Muruatetu & another v Republic [2017] eKLR, where the apex court pronounced itself as thus:

“Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under Articles 25 of the Constitution; an absolute right.”

Many decisions from the Court of Appeal have adopted the decision of the Supreme Court in holding that the mandatory sentences of the SOA takes away judicial discretion in sentencing. In Rophas Furaha Ngombo v Republic [2019] eKLR the Court of Appeal quoted with approval its decision in Dismas Wafula Kilwake vs. Republic, Criminal Appeal No. 129 of 2014, where is stated thus: -

“In principle, we are persuaded that there is no rational reason why the reasoning of the Supreme Court, which holds that the mandatory death sentence is unconstitutional for depriving the courts discretion to impose an appropriate sentence depending on the circumstances of each case, should not apply to the provisions of the sexual offences act, which do exactly the same thing.”

Having regard to the above, the question before the court is whether the trial magistrate considered the Appellant’s submission before sentencing him. I have looked at the trial court’s record and note that the Appellant was a first offender and that he was HIV positive. In sentencing the Appellant, the trial Magistrate acknowledge that the complainant was a minor and that the Appellant had an identification card. There is no evidence that the trial magistrate exercised his discretion in sentencing the Appellant.

The Supreme Court in Francis Karioko Muruatetu & another v Republic [2017] eKLR gave guidelines with regard to mitigating factors and pronounced itself thus: -

To avoid a lacuna, the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge:

(a)age of the offender;

(b) being a first offender;

(c) whether the offender pleaded guilty;

(d) character and record of the offender;

(e) commission of the offence in response to gender-based violence;

(f) remorsefulness of the offender;

(g) the possibility of reform and social re-adaptation of the offender;

(h) any other factor that the Court considers relevant.

The Judiciary of Kenya published Sentencing Policy Guidelines 2016 direct the courts to weigh mitigating factors against mitigating factors in sentencing an accused person.

In the present case, the aggravating that are clearly present are that the complainant was infected with HIV and gonorrhea and that the Appellant tried to prevent the ends of justice when he tried to hide the complainant at his cousin’s place.

On the other hand, the mitigating factors are that the Appellant was a first offender and he pleaded guilty during the first hearing saving the court’s time. Additionally, it is evident that the Appellant was a young man having just attained the age of 18 years when he committed the offence and that he suffers from HIV, a terminal diseases if not well treated. Furthermore, it is not lost to the court that the Appellant did not use force or deception on the complainant but it is evident by the testimony of the complainant that she knew what she was getting herself and even ran away from school.

I have weighed the mitigating factors against the aggravating factors and find that the sentence was harsh but in accordance with the demanding circumstances of the serious crimes committed by the Appellant.

The appeal lacks merit and it is therefore dismissed.

It is so ordered.

Judgment delivered, dated and signed at Malindi this 9th day of December, 2020.

..........................

R. NYAKUNDI

JUDGE

In the presence of:

Appellant in person

Mr. Mwangeka for the Respondent