[2023] KEHC 25324 (KLR)

Njagi v Republic (Criminal Appeal E059 of 2022) [2023] KEHC 25324 (KLR) (8 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25324 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E059 of 2022

LM Njuguna, J

November 8, 2023

Between

Martin Mugambi Njagi

Appellant

and

Republic

Respondent

(Appeal arising from the decision of Hon. J. Ndengeri (SRM) in Chief Magistrate’s Court at Embu Sexual Offence No. 14 of 2017 delivered on 23rd December 2020)

Judgment

1. By petition of appeal dated 04th November 2022, the appellant being dissatisfied with the above cited decision of the trial court, now seeks orders that the appeal be allowed, conviction be quashed, sentence be set aside and the appellant be set at liberty. The appeal is premised on the grounds set out on the undated amended grounds of appeal as follows:a.That the learned trial magistrate erred in law and facts by imposing a harsh and excessive sentence while disregarding the mitigation offered and the Judiciary Sentencing Policy Guidelines (2013);b.That the learned trial magistrate erred in law and facts by imposing a custodial sentence regardless of the fact that the appellant was willing to take responsibility as the father of the child; andc.That the learned trial magistrate erred in law and facts by failing to take into account the victim impact assessment report which showed that she wanted the appellant to support his child.

2. According to the charge sheet, the appellant was faced with the charge of defilement contrary to Section 8 (1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge are that, on or before 24th November 2016, in Embu County, the appellant unlawfully and willfully caused his penis to penetrate the vagina of DWM a child aged 13 years.

3. The alternative charge was: committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars for this charge are that on or before 24th November 2016, in Embu County, the appellant intentionally and unlawfully touched the vagina of DWM a child aged 11 years with his penis against her will.

4. The appellant pleaded not guilty and a plea of not guilty was duly entered. The prosecution called five witnesses in support of its case.

5. After conducting voire dire, PW1 gave sworn testimony and stated that on the material day, the appellant, who is her uncle, came to their home at around 9. 00a.m. and asked for painkillers. That she took the pills to the appellant who then forced her into his house and told her that he wanted to have sex with her, even though she struggled in resistance. That he repeatedly defiled her and released her to go at around 2. 00p.m. It is her testimony that she went back to their house and slept and did not tell anyone about the ordeal. That around April of the following year, her mother noticed that she was growing big and took her to the hospital where they got a positive pregnancy test. That it was at this point that she opened up about the defilement and her mother confronted the appellant about it. She stated that the appellant threatened to beat her up and promised to buy her a phone if she did not say that he was the father of the baby. She stated that she was in class 7 and had to drop out of school because of the pregnancy and the baby was delivered on 08th August 2017 at Karira Mwea Hospital. On cross-examination, she stated that the appellant has a wife and child. That at the time of the incident, people had already left for the day and that there was loud music in the appellant’s house such that her cries for help could not be heard over the noise.

6. PW2 is the victim’s mother, who stated that the appellant’s father and her mother are step-siblings. That PW1 was born in 2003 and that they live next to the home of the appellant. She produced the birth certificate as evidence. That in April 2017, she noticed that PW1 had changed and so she called her mother to ask PW1 what the problem was. That they took her to a clinic where she tested positive for pregnancy and she said that the appellant was the father. That she confronted the appellant who denied the allegations, after which, she reported the matter to the children’s office. PW2 stated that the appellant disappeared for a long time, until three weeks before the baby was born. That she got a P3 form from Embu Level 5 Hospital in May 2017. She produced the baby’s birth notification and added that she is the guardian to the baby as the victim attends college. On cross-examination, she stated that since the case commenced, she has been thrown out of the house by the appellant’s mother. That they did not seek money for an abortion but instead, they spent money to care for the victim during maternity and delivery.

7. PW3 was the examining doctor based at Embu Level 5 Hospital who stated that there was an old hymen perforation and discharge consistent with pregnancy. That the victim was enrolled for antenatal care at the facility. She noted penile penetration with fetal implantation and produced the P3 and Post-Rape Care forms as evidence. On cross-examination, she stated that the date of defilement could not be ascertained as the last menstruation date was unknown.

8. PW4, who was the initial investigating officer stated that on 29th May 2017, the case was reported and she took conduct of the matter. That the complainant and the witnesses recorded their statements and the offender was arrested after he had disappeared for two months. That the appellant admitted to having had sex with the victim and there was a positive DNA test showing that the appellant was the father of the baby. On cross-examination, she stated that when the matter was reported, PW1 was in the company of PW2. That the appellant was arrested on the day when he resurfaced after taking off when PW2 confronted him about the issue.

9. PW5, the current investigating officer in the matter stated that PW4 was transferred to another station. She produced the birth certificate and clinic record card for the baby born to PW1. On cross-examination, she stated that the father’s name was not included in the birth notification and also in the birth certificate.

10. This marked the end of the prosecution’s case and the court ruled that the appellant had a case to answer. He was put to his defense.

11. DW1 the appellant stated that he had been ignorant of the law and did not mean for his actions to lead to a court case. That he has since apologized to the family of PW1. He requested that he be allowed to take responsibility for his son and that he has not threatened PW1. At the close of the defense case, the court found the appellant guilty of the offence and sentenced him to 15 years imprisonment.

12. The parties on appeal filed their written submissions.

13. In his submissions, the appellant clarified that he is only appealing against the sentence and not the conviction. He stated that under Article 133 of the Constitution, he prays for mercy as he has now reformed. He stated that he wishes for the court to grant him a non-custodial sentence as the victim is only 18 years old and hails from a poor background, therefore in need of the appellant’s support to raise the child. That the victim said that she wanted the appellant to support his child and so the court should set him free to do so.

14. The respondent submitted that the elements of the offence were proved to the required standard. Reliance was placed on the cases of George Opondo Olunga Vs. Republic (2016) eKLR, Reuben Taabu Anjononi & 2 Others Vs. Republic (1980) eKLR, Kaingu Elias Kasomov Republic Criminal Appeal no. 504 of 2010 (unreported) and Hadson Ali Mwachongo Vs. Republic (2016) eKLR. That the sentence was not excessive as the court considered the mitigation of the appellants before sentencing as referenced in the case of Republic Vs. Shadrack Kipkoech Kogo (2022) eKLR. That the trial court departed from the prescribed mandatory minimum sentence.

15. From the memorandum of appeal, submissions and the record of the trial court, the issue for determination is whether the sentence meted out to the appellant was harsh and excessive.

16. The appellant clarified that in this appeal, he is only challenging the sentence. Therefore, I will limit my determination to the sentence as the conviction is settled. I have perused and considered the sentiments of the trial court regarding sentencing. I have also perused the victim impact statement report. The trial court alluded to this report and sentenced the appellant to 15 years imprisonment as provided under Section 8(3) the Sexual Offences Act No. 3 of 2006. In the report, the victim expressed that she would like the appellant to take responsibility as the father of the child but she wanted nothing to do with him. The appellant submitted that this court should consider granting him a non-custodial sentence in order to allow him fulfill his fatherly responsibility towards his son.

17. Section 329C(1) of the Criminal Procedure Code and Section 12(1) of the Victim Protection Act provide for the victim impact statement report and that the court may consider the same after conviction and before sentencing. The trial magistrate considered the report and proceeded to sentence the appellant to 15 years imprisonment, albeit departing from the mandatory minimum sentence of 20 years stipulated under section 8(3) the Sexual Offences Act No. 3 of 2006. The trial magistrate did indeed apply discretion on sentencing and in my view the sentence is not excessive or harsh, therefore, I find no reason to interfere with the same.

18. In the case of Mbogo & Another Vs Shah, [1968] EA, p.15 the court held that;“An appellate court will not interfere with the exercise of the trial court’s discretion unless it is satisfied that the court in exercising its discretion misdirected itself in some matters and as a result arrived at a decision that was erroneous, or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of judicial discretion and that as a result there has been misjustice.”

19. In light of the foregoing I find that the appeal lacks merit and is hereby dismissed.

20. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 8TH DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE…………………………………………………………………………for the Appellant…………………………………………………………………………for the Respondent