[2022] KEHC 16302 (KLR)

Momanyi v Republic (Criminal Appeal 11 of 2020) [2022] KEHC 16302 (KLR) (14 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16302 (KLR)

Republic of Kenya

In the High Court at Narok

Criminal Appeal 11 of 2020

F Gikonyo, J

December 14, 2022

Between

James Mwambora Momanyi Alias Mwangi

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence of Hon. G. N. Wakahiu (C.M.) in Narok SOA Case No. 51 of 2018 on 4/5/2020)

Judgment

[1]Before me is an undated memorandum of appeal filed on May 14, 2020 pursuant to sections 17, 350,357, 362, and 364 of the Criminal Procedure Code.

[2]The said memorandum of appeal raised 6 grounds.

[3]The appellant, however, filed amended grounds of appeal pursuant to section 350(2) 9v) of theCPC on January 12, 2022. The amended grounds of appeal are as follows; - Thati.The learned trial magistrate erred in law in convicting and sentencing him to serve 10 years yet failed to take into consideration all the mitigating factors raised by him the appellant which was manifestly harsh and excessive in the circumstance and occasioned a failure of justice.ii.The learned trial magistrate erred in law in convicting and sentencing him minus considering section 333(2) of the criminal procedure code.

[4]The appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No 3 of 2006. He was convicted of the offence and sentenced to serve 10 years’ imprisonment by Hon GN Wakahiu (CM) on May 4, 2020.

Appellant’s submission [5]The appellant orally submitted that he has abandoned all other grounds of appeal except one under section 333(2) of theCPC.

[6]In his mitigation, the appellant argued that he pleaded not guilty, leased a shamba at Rotian, was just a casual labourer, was never given an opportunity for a noncustodial sentence, is a young person aged 29 years, is a first offender, and was not being paid by his employer.

[7]The appellant submitted that the sentence was harsh and undesirable since the period spent in custody was not computed into his eventual sentence as provided for under section 333(2) of the CPC. That he was brought before the trial magistrate on June 12, 2018 and was convicted on May 4, 2020.

[8]The appellant submitted that the trial court failed to take into consideration the judiciary sentence policy guidelines.

[9]In the end, the appellant submitted that his mitigation of appeal be allowed and the sentence quashed.

[10]The appellant has relied on the following authorities;i.Joseph Kaberia Kahinga & 11others v Attorney General [2016] eKLRii.Section 333(2) of the Criminal Procedure Code.iii.Section 63 of the Penal Code.iv.Article 50(2) (p) of the Constitutionof Kenya.v.Francis Opondo v Rep [2017] eKLR.vi.Daniel Gichimu &another v Rep [2018] eKLRvii.Ahamad Abolfathi Mohammed &anotherv Republic [2018] eKLR.

Prosecution’s submission [11]Ms Torosi orally submitted that her written submissions do not speak to section 333(2) of the CPC. She however urged this court to consider the record and the fact that the trial court considered all factors which made the appellant be sentenced to 10 years. She added that the sentence is proper.

[12]Ms Torosi went ahead to urge this court to dismiss the appellant’s request and uphold the sentence. She argued that the appellant was not granted a bond and the sentence was from the date of judgment.

[13]The respondent submitted that it is apparent from the record that the court was guided by sentencing guidelines and the aggravating circumstances in the case imposing a sentence of 10 years.

[14]The respondent submitted that the prosecution proved their case beyond any reasonable doubt. That the three ingredients; penetration, age, and identification of the perpetrator were proved.

[15]The prosecution submitted that the defence of the appellant did not challenge the prosecution’s evidence.

[16]The respondent submitted that the trial court considered the children officer’s report together with the probation officer’s report and the appellant’s mitigation before sentencing therefore the trial court was guided by sentencing guidelines and the aggravating circumstances in the case imposing the sentence of 10 years.

[17]In the end, the respondent urged this court to uphold the conviction as well as the sentence.

Analysis And Determination Court’s duty [18]As a first appellate court, this court is obligated to re-evaluate the evidence and make its own conclusions, except bearing in mind that the trial court had the advantage of hearing and observing the demeanor of the witnesses. See Okeno v Republic[1972] EA 32.

[19]I have considered the grounds of appeal, the sentencing judgment of the lower court appellant, and the respondent’s submissions. I find the main issue for determination is;

i. Whether the time spent in custody was not considered in the sentence imposed upon to the appellant hence making it excessive and harsh. [20]The appellant herein claims that time spent in custody was not considered in the sentence imposed upon him in violation of section 333(2) of the Criminal Procedure Code.

[21]According to section 333(2) of the Criminal Procedure: -“Subject to the provisions of section 38 of the Penal Code(Cap 63) Every sentence shall be deemed to commence from and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”

[22]See also section 137I (2) (a) of theCPCthat: -

(2)In passing a sentence, the court shall take into account—(a)The period during which the accused person has been in custody;

[23]Court’s duty under, and the object of section 333(2) of the CPC has been explained in the Judiciary Sentencing Policy Guidelines (under clauses 7. 10 and 7. 11) as follows:“The provision 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.”

[24]Judicial pronouncements have also buttressed the importance of section 333(2) of the CPC in sentencing. See the Court of Appeal in Ahamad Abolfathi Mohammed &another vs. Republic [2018] eKLR that, courts must give real effect to the section in sentencing; and that merely stating that you have taken account of time spent in custody is not sufficient if the sentence does not show that the period spent in custody prior to sentencing had been taken into account.

[25]Accordingly, failure to give effect to the proviso to section 333(2) of the CPC opens the accused to a real risk of serving a more severe sentence than lawfully prescribed or proportional to the offence. Thus, a convicted person who so surfers may therefore, found an action ‘’for redress of a denial, violation, or infringement of, or threat to, a right or fundamental freedom in the bill of rights’’ under article 23(1) and 165(3)(b) of the Constitution.

Applying the test [26]From the trial court typed proceedings, judgment, and sentence, the following relevant dates are discernible; the accused was arraigned in court on June 12, 2018 and was sentenced on May 4, 2020 to serve 10 years’ imprisonment.

[27]The appellant herein was convicted of the offence of defilement contrary to section 8(1) as read with section 8(3) of the SOA.

[28]The trial court (Hon GN Wakahiu (CM) in sentencing the appellant stated as follows: -“It is clear for this quote that the’ Muruatetu’ case has been extended to SOA cases and that when in SOA cases, the court’s discretion cannot be fettered and each case has to be determined on its own merits.Section 8 of the sexual offences act provides as follows;8(1) a person who commits an act which causes penetration with a child is guilty of an offence termed as defilement.(2)a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.(3)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.(4)a person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.In this case, the victim was aged 14 years. By dint of section 8(3) of the SOA, punishment where the child the age of between twelve and fifteen years is imprisonment for a term of not less than twenty years. I had requested for a report by the probation department as well as the children’s department since the victim was a child aged 14 years. The said reports have been availed to me. I have also considered the accused’s mitigation. Bearing all the circumstances of this case and in view of all the reports now available, I sentence the accused to serve ten (10) years. Sentence period to start from today and right of appeal within 14 days from today’s date.’’

29. I find that the trial court took into account all the relevant factors and properly imposed a sentence of 10 years’ imprisonment. Sentence for defilement of a child aged 14 years is imprisonment of a period of not less than 20 years. The prescribed sentence is indicative of the seriousness of the offence and the society’s intention through its legislative representatives to stamp out sexual debauchery of its children. Thus, a sentence of 10 years may be too lenient. Therefore, a holistic consideration of this matter is that given the nature of the offence and the pronouncements by the trial court, the appellant has had the advantage of section 333(2) of the CPC. I do not, therefore, find any violation of his right.

30. The appeal herein lacks merit and is hereby dismissed.

31. It is so ordered.

DATED, SIGNED, AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION, THIS 14TH DAY OF DECEMBER 2022. ................................................F. Gikonyo M.JudgeIn the presence of:1 The Appellant2 Ms. Torosi for DPP3Mr. Kasaso - CA