[2023] KEHC 25063 (KLR)

ME v Republic (Criminal Appeal E013 of 2023) [2023] KEHC 25063 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25063 (KLR)

Republic of Kenya

In the High Court at Lodwar

Criminal Appeal E013 of 2023

RN Nyakundi, J

November 9, 2023

Between

ME

Appellant

and

Republic

Respondent

(Being an Appeal against Sentence and Conviction meted by the accused person ME of Original Criminal Number E039 of 2022 at Senior Principal Magistrate Court at Lodwar by Hon. Orimba)

Judgment

Before Justice R. NyakundiMr. Okaka for the state 1. The Appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 20th July, 2021 in Turkana County the appellant intentionally and unlawfully caused his penis to penetrate the Vagina of N.E. a child of 17 years. 2. He was also charged with an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 20th July, 2021 in Turkana County the appellant intentionally and unlawfully caused his penis to penetrate the Vagina of N.E. a child of 17 years.

3. The appellant was convicted on his own plea and sentenced to serve ten (10) years imprisonment.

4. The appellant filed the present appeal seeking that the court calls for a re-trial under the provisions article 50 (6) (a).Parties filed written submissions in support of their arguments.

Appellant’s Submissions 5. The appellant submitted that he pleaded guilty after receiving counsel from the family of the victim and that he was cautious of the woes the victim would have had in raising the child.

6. It was the appellant’s submission that he is a first offender with no previous criminal record and that he admits to the offence, the victim now being his wife. He submitted that he believes the fact that he is now a father should exonerate him and allow him take care of his child with the victim.

Respondent’s Submissions 7. Mr. John Limo, prosecution counsel in opposing the appeal submitted that the ingredients of the offence of defilement were sufficiently proved and a such the sentence should be maintained.

Analysis And Determination 8. I have considered the appeal and submissions by both parties. I have also read the record of the trial court and its sentencing.

9. The appellant sought a re-trial of his case pursuant to the provisions of article 50 (6) (a). However, in his submissions the appellant did not address this question but appeared to make prayers that he be exonerated for reasons that he should be allowed to take care of his child with the victim.

10. The issues that arise for determination in this appeal are;i.Whether the led sufficient evidence to warrant a re-trial;ii.Whether the sentence meted upon the appellant was lawful.

11. Article 50 (6) (a) & (b) of the Constitution provides that:-(6)A person who is convicted of a criminal offence may petition the High Court for a new trial if-(a)The person’s appeal, if any, has been dismissed by the Highest court to which the person is entitled to appeal, or the person did not appeal within the time allowed; and(b)New and compelling evidence has become available.

12. These provisions are to be construed in tandem with Article 50 (2) (a) (b) (c) (j) & (k) of the constitution which expressly states as follows: “Every accused persons has the right to a fair trial which includes the right:-a.Tobe presumed innocent until the contrary is provedb.To be informed of the charge, with sufficient date to answer itc.To have adequate time and facility to prepare a defence(j)to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence(k)to adduce and challenge evidence

13. Thus, for a new trial to be ordered under Article 50 (6) of the Constitution, the appellant herein must prove two things: first that his appeal to the highest court has been dismissed or that he did not appeal within the stipulated time allowed for appeal and secondly, he must prove that new and compelling evidence has become available.

14. That being the case, it is the court’s finding that the appellant has not met the threshold established in the said provision. In the case of Natasha Sing V CB (2013) 5 SCC 741 where it was held as follows: “ Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus under no circumstances can a persons right to fair trial be jeopardized.

15. My reading of the record shows no limitation of fair trial rights as stipulated in Article 50 of the constitution. The purpose of the open justice principle is that public participation is crucial to the administration of criminal law of equal importance the appellant must also be in alive to the competent verdicts at the plea stage. Therefore, any irregularity at an appeal’s court must be examined within the ambit of the comparative case of Barbaro v The Queen Barabaro v The Queen [2014] HCA 2(27) –(28) the plurality in the High Court observed “ The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some substantial wrong has in fact occurred, in fixing that sentence. For the reasons which follows the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principles in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.

16. I therefore find for these reasons, the appellant has not met the criteria that his constitutional rights on fair trial rights were violated when he pleaded guilty to the offence of defilement. Subsequently the attack on the proceedings as being defective is not well founded in law. The principles governing whether or not a retrial should be ordered are now well settled as reflected in the case of Fatehali Manji v Republic [1966] EA 343 by the East Africa Court of Appeal as follows: “In general a retrial will be ordered only when the original, trail was illegal or defective, it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial, even where a conviction is vitiated by a mistake of the trail court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered, each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice requires it and should not be ordered where it is likely to cause injustice to the accused person.”

17. The appellant’s case does not fit the fulcrum in the Fatehali dicta. A call for a re-trial is lost as the elements of defilement were all proved beyond reasonable doubt. It is also not lost to this court that the appellant admitted to the offence and in fact he seeks leave of this court to be pardoned so that he can take care of his child together with the victim.

18. As for the sentence of 10 years my overview framework would be based in the Bernard Kimani v Republic “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.”

19. The fundamental purpose of sentencing is to contribute along with crime prevention initiatives to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have more of the following objectives:1. To denounce the unlawful conduct2. To separate offenders from society where necessary3. To deter the offender and other persons from committing the offences4. To promote a sense responsibility in offenders and acknowledgement of the harm done to victims and to the community5. In addition, defilement is a form of gender based violence and in campuses and sexual act or advances directed against a person’s sexuality using cohesion or force. This was the case here and its indeed a human right’s issue

20. Overall I now go back to the question whether the sentence of 10 years imprisonment should be allowed to stand as a sanction to address prevention for the would be offenders and for accountability on the part of the appellant for the intentional and unlawful section act committed against the victim without due regard to her dignity, security, and the aftermath of pshycotraumatic impairment. I think the torture and degrading treatment by the perpetrator against his female victim is very common in our society and requires specific interventions beyond criminal law. In so far as the sentence imposed by the trial court is concerned, I am of the view that weighing the specifics of aggravating factors and mitigation a review of the ten (10) years sentence be interfered with to the extent of a lesser period of 7 years with effect from 8th February, 2022. Orders accordingly.

DATED AND SIGNED AT LODWAR THIS 9TH DAY OF NOVEMBER, 2023In the Presence ofMr. Okaka for the StateAppellant……………………………………….R. NYAKUNDIJUDGE