[2013] KEHC 1803 (KLR)
The court found that the sentences imposed by the trial court were within the statutory limits for both robbery and rape. The appellant's plea of guilty was unequivocal, and the facts presented supported the convictions. The court considered the appellant's mitigation, including his claims of illness and...
Source-derived case information.
- Citation
- [2013] KEHC 1803 (KLR)
- Parties
- Appellant: Mulwa Nduva; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 114 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; sentences confirmed
- Judges
- LN Mutende
- Legal Topics
- Sentencing Principles, Robbery, Rape, Plea of Guilty, Mitigation, Concurrent Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mulwa Nduva
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentences imposed for robbery and rape were lawful and appropriate.
- 2 Whether the appellant's mitigation, including claims of illness and intoxication, warranted reduction of sentence.
- 3 Whether the trial court properly exercised its discretion in sentencing and ordering concurrent sentences.
Ratio Decidendi
The court found that the sentences imposed by the trial court were within the statutory limits for both robbery and rape. The appellant's plea of guilty was unequivocal, and the facts presented supported the convictions. The court considered the appellant's mitigation, including his claims of illness and intoxication, but found no compelling medical evidence to warrant a reduction of sentence. The medical reports indicated no serious health issues, and the appellant had access to adequate medical care in prison. The five-year sentence for robbery was below the maximum allowed, and the ten-year sentence for rape was the statutory minimum. The order for the sentences to run concurrently was...
Court Disposition
appeal dismissed; sentences confirmed
Orders
- The appeal on sentence is dismissed.
- The sentences in both counts are confirmed and shall run concurrently as previously ordered.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. 114 OF 2011
MULWA NDUA……………………………………….........APPELLANT
VERSUS
REPUBLIC ………………………….........................RESPONDENT
(Being an Appeal from the original conviction and sentence in Makindu Principal Magistrate’s Court Criminal Case No. 865/2009 by Hon. Ochieng ,PM on 7/6/09)
JUDGMENT
Mulwa Nduva (appellant) was charged with two (2) counts.
Robbery contrary to section 296 (1) of the Penal Code.
Rape contrary to section 3(1) (3) of the Sexual Offences Act No. 3 of 2006.
He admitted the charges and was convicted on his own plea of guilty. On count 1 he was sentenced to five (5) years imprisonment. On count 2 he was sentenced to ten (10) years imprisonment.
Being aggrieved by the sentences imposed he now mitigates to this court on sentence. He states that he committed the offence due to drunkenness. Seeking the courts leniency, he stated that he has been ailing while in prison. He tendered evidence in an endeavour to establish that fact.
The learned State Counsel, Mrs Abuga opposed the appeal. She stated that when the charges were read to the appellant he pleaded guilty. An unequivocal plea was entered against him. The facts were presented and he admitted the same. The facts presented proved the charges and the sentences imposed were within the law.
Further, she submitted that the treatment chits produced by the appellant clearly showed that the appellant was being treated while in prison. She asked the court to uphold the conviction and sentence.
This being the first appeal, I do remind myself of the duty to re-evaluate the facts and evidence presented before the Lower Court in order to reach an independent decision as to whether the sentence meted out was in accordance with the law.
In count 1 the appellant was sentenced to 5 years imprisonment for an offence of robbery contrary to section 296(1) of the Penal Code. The section provides thus:-
“Any person who commits the felony of robbery is liable to imprisonment for fourteen (14) years”.
In the second count the charge was rape contrary to Section 3(1) (a) & (3) of the Sexual Offences Act No. 3 of 2006, which provides as follows ;-
“A person who commits the offence termed rape if-
He or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs.
(3) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than 10 years but which may be enhanced to imprisonment for life.”
The facts in support of the charges indicated that the appellant used a knife which was a weapon to threaten the complainant. He pulled her into the bush and penetrated her at knife point. On completion of the act he fell asleep and that is how she escaped from him. She was examined. The medical examination report (P3) indicated she had been raped. To-date the appellant does not dispute these facts.
It is not in dispute that the appellant has undergone treatment while serving sentence.According to the report of the radiographer, the liver has normal endo-pattern. The spleen, pancreas and both kidneys were found normal in size and texture. There was no abdominal mass lesion seen. There was nothing abnormal detected. This being the case, there is nothing unusual to persuade this court to exercise a moral duty as opposed to a legal duty that is within its mandate.
That notwithstanding as clearly pointed out by the learned state counsel, in case he ails, there is accessibility of medical facility at the institution. In case of a referral case, he will be referred to Kenyatta National Hospital where he was treated previously.
In count 1 the maximum sentence provided for in law is 15 years imprisonment. The 5 years (sentence) imposed was on the lower side considering the weapon used to threaten the complainant.
In the second count the law provides for a minimum sentence of 10 years which could be enhanced to life imprisonment. The court opted to impose the mandatory minimum custodial sentence provided by the law.
It was the courts order that the sentences run concurrently. There was no misdirection in the circumstances. I therefore decline to interfere with the lawful sentence imposed. The sentences in both counts are confirmed.
Accordingly, the appeal on sentences is dismissed.
DATED, SIGNED and DELIVEREDat MACHAKOS this 17THday of OCTOBER, 2013.
L.N. MUTENDE
JUDGE