[2022] KEHC 1750 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

APPELLATE SIDE

(Coram: Odunga, J)

CRIMINAL APPEAL NO. E O43 OF 2021

MM1. ...................................................................................................................APPELLANT

VERSUS

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

(Being an appeal from the conviction and sentence of the Hon. C. A. Ocharo SPM

in Machakos CM Criminal Case No. 19 of 2020)

REPUBLIC.....................................................................................................PROSECUTOR

VERSUS

MM1. .......................................................................................................................ACCUSED

JUDGEMENT

1. The appellant herein, MM1, was charged before Machakos CM’s Court in Criminal Case No. 19 of 2020 with the offence of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that the appellant on 18th May, 2020 at around 1100hours in Kathiani sub-locaion within Machakos County, he intentionally caused his penis to penetrate the vagina of MM2, a girl aged 12 years who was to his knowledge his daughter.

2. Upon the charge being read over to the accused he pleaded guilty to the same and was convicted on own plea of guilty and was sentenced to serve 20 years in prison.

3. This appeal is restricted to the sentence imposed. According to the Appellant, there were no aggravating factors to compel the trial court to impose on him the said sentence. It was further submitted that the trial court did not consider the fact that he was a first offender and did not consider the appellant’s mitigation. It was his position that in light of the foregoing, the sentence imposed upon him was excessive in light of the minimum sentence prescribed by the law. It was submitted that the appellant’s remorse for the offence can be deduced from the fact that he pleaded guilty to the offence hence sparing the trial court the precious time. In support of his case the appellant relied on Edwin Omondi Ochare vs. Republic [2019] eKLR, Tom Wafula Wawire vs. Republic [2019] eKLR and Gilbert Wanami Kisiangani vs. Republic [2018] eKLR.

4. In opposing the appeal, it was submitted on behalf of the Respondent that the grounds of appeal raised by the appellant as they are merely mitigation and do not qualify to be called grounds of appeal. Further the said mitigations do not warrant this court to interfere with the discretion exercised by the trial court.

5. According to the Respondent, sentencing being the discretion of the trial court, such discretion must be exercised judiciously and not capriciously. The trial court must be guided by the evidence and sound legal principles. During sentencing the court must take into account all relevant factors eschew all extraneous or irrelevant factors. It was submitted that the appellate court would be entitled to interfere with the sentence imposed by the trial court if it is demonstrated that the sentence imposed is not legal or it is so harsh and excessive to amount to miscarriage of justice, and or that the court acted upon wrong principles or if the court exercised its discretion capriciously. Reliance was placed on Shadrack Kipchoge Kogo vs. Republic, Ogolla s/o Owuor vs. Republic,[1954] EACA 270, Bernard Kimani Gacheru vs. Republic [2002] eKLR and the Sentencing Policy Guidelines, 2016.

6. Thus, it was submitted, while exercising its discretion in sentencing, the court should bear in mind the principles off proportionality, deterrence and rehabilitation and as part of the proportionality analysis, mitigating and aggravating factor should also be considered.

7. According to the Respondent, considering that the law provides for a sentence of life imprisonment, the court was lenient in meting the sentence of ten years. It was submitted that since the court took note of the seriousness of the offence, the appellants mitigation, being a first offender, trauma caused to the victim and the principles of sentencing, there is no reason for this court to interfere with the sentence imposed by the trial court.

8. In light of the foregoing, it was submitted that the appellant has not raised sufficient reasons that can warrant this court to interfere with the discretion exercised by the trial court. and this Appeal ought to be dismissed, and both the conviction and sentence of the trial court upheld.

Determination

9. In this appeal, the appellant is only aggrieved with the sentence. It is therefore important to set out the circumstances under which an appellate court interferes with sentence. The principles guiding interference with sentencing by the appellate Court were properly, in my view, set out in S vs. Malgas 2001 (1) SACR 469 (SCA)at para 12 where it was held that:

“A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court…However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”

10. Similarly, in Mokela vs. The State (135/11) [2011] ZASCA 166, the Supreme Court of South Africa held that:

“It is well-established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served.”

11. The predecessor of the Court of Appeal in the case of Ogolla s/o Owuor vs. Republic,[1954] EACA 270, pronounced itself on this issue as follows:-

"The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”

12. To this, I would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case”.(R - v- Shershowsky (1912) CCA 28TLR 263)while in the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003the Court of Appeal stated thus:-

“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”

13. The Court of Appeal, on its part, in Bernard Kimani Gacheru vs. Republic [2002] eKLRrestated that:

“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 states is shown to exist.”

14. In this case the appellant was charged under Section 20 of the Sexual Offences Act which provides as follows; -

20. (1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:

Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.

15. It is therefore clear that where a person is charged with an offence under the above section, where the victim is over 18 years old, the offender faces an imprisonment of not less than 10 years. This means that the offender may be imprisoned for any term between 10 years and life imprisonment. However, where the victim is under 18 years, the offender shall be liable to imprisonment for life.Clearly the manner in which the section is drawn poses some difficulty if the drafters meant that where the victim is less than 18 years, the sentence ought to be heavier than where the victim is over 18 years old.

16. The difficulty arises from the interpretation of the phrase “shall be liable to”. Sir Henry Webb C.J. in Kichanjele S/O Ndamungu versus Republic (1941) 8 EACA 64 had this to say on the proper construction of the words “liable to”:

“The wording used throughout the code is “shall be liable to” but a consideration of the various sections shows in our judgment, that the use of the words “shall be liable to” does not import that the sentence mentioned in any particular section in which these words occur is merely a maximum and that the court may impose any lesser sentence below the limit indicated.”

17. The predecessor of the court went further in Opoya versus Uganda [1967] EA 752 at page 754 where Sir Clement DeLestang V.P. picked up the conversation inter alia thus:

“It seems to us beyond argument that the words “shall be liable to” do not in the ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words they are not mandatory but provide a maximum sentence only and while the liability existed, the court might not see fit to impose it.”

18. A similar position was adopted in D W M vs. Republic (supra) where the Court held that:

“As for the sentence the 1st appellate court properly addressed its mind to the operative words in Section 20(1) of the Sexual Offences Act that the offender “Shall be liable to imprisonment for life” means that imprisonment for life was the maximum sentence for an offence under the section. A lesser sentence could be imposed considering that the appellant was a first offender though the offence was said to be prevalent, serious and most importantly that the appellant who was supposed to be the complainant's protector turned out to be her tormentor and perpetrator of the defilement. The judge however deemed it proper to substitute the sentence for life imprisonment with that of twenty (20) years imprisonment and it was within his powers to do so. The resulting sentence was within the limits permitted by law and we find no reason to interfere with the exercise of that discretion.”

19. What this phrase implies is that the proviso only prescribes for the maximum sentence in which event no distinction is created between the first part and the second part of the section.

20. The Supreme Court in Francis Karioko Muruatetu & Another vs. Republic, Petition No. 15 of 2015, set out the following guidelines with respect to sentencing:

“[71]…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.

21. In this case the record indicates that the appellant was considered to be a first offender and he also pleaded guilty. Both were factors to his credit and ought to have been taken into account. In Felix Nthiwa Munyao vs. R Nairobi Court of Appeal Criminal Appeal No. 187 of 2000the Court of Appeal expressed itself as hereunder:

“As we have said, the maximum sentence provided under Section 205 of the Code is life imprisonment. We will repeat what the Court said in the case of Gedion Kenga Maita vs. Republic Criminal Appeal No. 35 of 1997 (unreported). There, the Court stated:

‘…We are not saying that a court has no power to impose a sentence of life: a court can do so depending on the circumstances of a particular case which circumstances must include the circumstances under which the offence itself was committed, the circumstances of the accused person such as whether he is a first offender, how long he has been in prison awaiting trial and things of that nature.’

In the present case, the learned Judge wrote very elaborate notes on the sentence he imposed on the appellant. He took into account the fact that the attack on the deceased was brutal and vicious: that was correct and the learned Judge was right in doing so. He also took into account the fact that the vicious and brutal attack was on a wife in the presence of their very young daughter. Once again, that was correct and the Judge was entitled to take it into account. The attack, said the Judge. Was an act of domestic violence and the courts must do their part to discourage it. That was also correct and the Judge was perfectly entitled to consider it. These were matters on one side of the scale aggravating the crime committed by the appellant. But a court is also under a duty to take into account the matters in favour of an accused person. In this case, the appellant was, admittedly, a first offender. The learned Judge does not mention this factor at all in his elaborate notes on sentence. This was, however, a factor which the learned Judge was bound to take into account in favour of the appellant. Again, the appellant was arrested on 27th/28th December, 1998 and by the time the Judge sentenced him on 29th June, 2000, he had been in prison for nearly one and half years. The learned Judge did not mention this factor in his notes on the sentence. We think he was bound by the law to consider the two factors which were in favour of the appellant and weigh them against those which supported a severe penalty. Sentence is essentially a discretionary matter for the trial court but in exercising that discretion, the trial court must take into account all the relevant factors and leave out all irrelevant ones. An appeal court, which ours is, is only entitled to interfere with the exercise of discretion where it is shown that the court whose exercise of discretion is impugned, has either not taken into account a relevant factor, or taken into account an irrelevant factor or that short of these the exercise of the discretion is plainly wrong. Etyang, J appear not to have taken into account the fact that the appellant was a first offender and that he had been in custody for over one year before he was sentenced. The learned Judge’s failure to take these factors into account gives us the right to interfere with the sentence he imposed on the appellant. We accordingly set aside the sentence of life imprisonment imposed on a man of some thirty-eight years and substitute it with a sentence of fifteen (15) years imprisonment to run from the date when the appellant was first sentenced by the superior court.”

22. In this case the learned trial magistrate’s view, in imposing the sentence, was influenced by the fact that the appellant was not remorseful for what he did and that he had destroyed the victim’s future. Accordingly, the sentence imposed was to act as a deterrent to parents who commit such offences. The Court did not mention anything about the fact that the appellant had pleaded guilty from the very first instance and was a first offender. In mitigation, the appellant informed the court that he did not know what became of him. However, the trial court found that this was not an expression of remorse. With due respect, I disagree with the learned trial magistrate that a holistic consideration of the circumstances of the case did not disclose any remorse on the part of the appellant. To the contrary, the appellant’s conduct discloses remorse on the part of the appellant.

23. Accordingly, I find that the sentence imposed was on the higher side. I therefore allow the appeal and substitute the sentence of 20 years with that of 10 years to run from 18th May, 2020 when the appellant was arrested.

24. It is so ordered.

JUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 10TH DAY OF MARCH, 2022

G V ODUNGA

JUDGE

In the presence of:

The Appellant in person

Mr Ngetich for the Respondent

CA Susan