[2021] KEHC 681 (KLR)
The court found that the appellant was sentenced to the minimum term prescribed by law for the offence of committing an indecent act with a child under Section 11(1) of the Sexual Offences Act. The trial court did not misdirect itself, especially considering the age of the complainant and the statutory requirements....
Source-derived case information.
- Citation
- [2021] KEHC 681 (KLR)
- Parties
- Appellant: Michael Ateka Kamau; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 29 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- LN Mutende
- Legal Topics
- Sexual Offences, Sentencing Principles, Indecent Act With Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Ateka Kamau
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in convicting and sentencing the appellant for committing an indecent act with a child.
- 2 Whether the sentence imposed was manifestly excessive or failed to consider time spent in custody.
Ratio Decidendi
The court found that the appellant was sentenced to the minimum term prescribed by law for the offence of committing an indecent act with a child under Section 11(1) of the Sexual Offences Act. The trial court did not misdirect itself, especially considering the age of the complainant and the statutory requirements. The appellate court reiterated that it would only interfere with a sentence if it was manifestly excessive, based on wrong principles, or if relevant factors were ignored. The court also noted the obligation to consider time spent in custody but found no basis to interfere with the sentence as imposed. Consequently, the appeal lacked merit and was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The sentence of ten years imprisonment is upheld.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO. 29 OF 2017
MICHAEL ATEKA KAMAU…………………….………..APPELLANT
VERSUS
REPUBLIC ……………………………………..………...RESPONDENT
(Being an appeal arising from the original Sentence in Sexual Offence Case No. 101 of 2014 at the Chief Magistrate’sCourt Kibera by Hon. B. Ojoo – PM on 16/2/2017)
JUDGEMENT
1. Michael Ateka Kamau,the Appellant, was charged with the offence of Committing an Indecent Act with a child contrary to section 11(1) of the Sexual Offences Act. Particulars of the offence being that on the 26th day of August, 2014, at [Particulars Withheld] in Langata District within Nairobi County, intentionally and unlawfully touched the vagina of VHO a child aged 5 years with his penis.
2. Having been taken through full trial, he was convicted and sentenced to serve ten (10) years imprisonment.
3. Aggrieved, the appellant appealed against both the conviction and sentence. However, during hearing of the appeal, he admitted having committed the act of indecency with a child and asked the court to consider taking into account time spent in custody. He stated that during pendency of trial he was in custody for two (2) years, four (4) months.
4. Ms. Akunja, learned Counsel for the State opposed the appeal and urged the court not to interfere with the sentence meted out.
5. As a first appellate court, I have the responsibility of re-considering what transpired at trial and come to my independent conclusions bearing in mind that I did not have the opportunity of hearing what was stated at trial. (Also see Okeno -vs- Republic (1972) EA 32. )
6. I have been called upon to interfere with the sentence passed by the trial court. Principles of interfering with such a sentence have been clarified. An appellate court will normally not interfere with exercise of discretion by the trial court unless it is demonstrated that the court acted on wrong principles, ignored material factors, took into account irrelevant considerations, or if the the sentence is manifestly excessive. In the case of Bernard Kimani Gacheru -v- Republic, Cr App. No. 188 of 2000the Court of Appeal 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...”
7. The Judiciary Sentencing Policy Guidelines further provides that: -
“The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”
8. The appellant contravened Section 11(1) of the Sexual Offences Act that provides thus:
Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.
9. The appellant having been sentenced to the minimum prescribed sentence for the offence, and taking into consideration the age of the complainant, the trial court did not misdirect Itself.
10. In the result, the appeal is bereft for merit, accordingly, it is dismissed.
11. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY, THIS 16TH DAY OF DECEMBER, 2021.
L. N. MUTENDE
JUDGE
IN THE PRESENCE OF:
Court Assistant – Mutai
Ms. Ndombi – ODPP
Appellant.