[2020] KEHC 1096 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL APPEAL NO. 131 OF 2018

NKR............................................APPELLANT

VERSUS

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

(Being an appeal from the original sentence in the Senior Principal Magistrate Court at Shanzu Sexual Offence No. 96 of 2017 by Hon. L. T. Lewa (SRM) dated 26th October

Coram: Hon. Justice R. Nyakundi

Mr. Muthomi for Respondent

Appellant in person

JUDGMENT

The Appellant was charged with incest contrary to section 20 (1) (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between February 2017 and March 2017 in Kilifi sub-County within Kilifi County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of NH, who was to his knowledge his daughter.

The Appellant pleaded not guilty and after hearing, he was convicted and sentenced to life imprisonment.

Aggrieved by the said sentence, the Appellant filed his amended grounds of appeal reproduced verbatim that: -

1. That the trial Court Magistrate erred in law and fact by giving me a harsh and excessive sentence.

2. That the trial Court Magistrate erred in law and fact by failing to find that the wording used throughout the Sexual Offences Act section 20(1) is shall be liable to imprisonment for life. Shall be liable does not import that the sentence mentioned in any particular section in which the word occurs is merely the maximum and that the court may impose any lesser sentence below the limit indicated.

3. That the trial court Magistrate erred in law and facts by failing to find that the circumstances of the case, it should be a policy of sentencing to give me the Appellant the minimum sentence allowable in law to enable me the Appellant serve time and return to society to take care of the children.

The Appellant filed his written submissions on 22nd May 2020 in support of his appeal. The Appellant submitted that the sentence meted out was excessive as the term “shall be liable”as used in section 20(1) of the Sexual Offences Act (SOA) was the maximum and that the court could exercise judicial discretion. He relied on Kichanjeles/o Ndamungu vs Rep (1941) 8 EACA 64, Opoya vs Uganda (1967) EA 752and D.W.M vs Rep (2016) eKLR.

Further, it was submitted that mandatory sentences deprived courts of judicial discretion in light of the Supreme Court’s decision in Francis Karioko Muruatetu & Ano vs Rep (2017) eKLR. He urged that the S.O.A must be construed in line with the Constitution taking into account the dignity of the individuals as enshrined in Article 27 of the Constitution. He relied on Samuel Ochieng Alego vs Rep HCCRA No. 187 of 2015. Finally, the Appellant submitted that the trial Magistrate failed to consider the period he had spent in remand during sentencing as provided for in Section 333(2) of the Criminal Procedure Code (C.P.C).

The Respondent filed its submissions dated 22nd June 2020 on the 22nd June 2020. It was the Respondent’s submission that the use of the term “shall be liable”in section 20(1) of the SOA gave the trial court discretion to mete out a maximum sentence of life imprisonment where the victim was below 18 years old. In support of his submission, the Respondent cited the PMM vs Republic (2018) eKLR, M.K vs Republic [2015] eKLR and Opoya v Uganda (1967) EA 752.

The Respondent submitted that the trial Magistrate misdirected himself in sentencing the Appellant to life imprisonment and urged the court to exercise judicial discretion to set aside the life imprisonment and substitute it was a sentence of 30 years.

Analysis and determination

I have considered the submissions by both parties. It is clear that the appeal is against the sentence only.

It is well established that sentencing is at the discretion of the trial court and an appellate court can only interfere with the sentence under very specific circumstances as was emphasized by the Court of Appeal in Ahamad Abolfathi Mohammed & another v Republic[2018] eKLRwhere it stated: -

“As what is challenged in this appeal regarding sentence is essentially the exercise of discretion, as a principle this Court will normally not interfere with exercise of discretion by the court appealed from unless it is demonstrated that the court acted on wrong principle; ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive. In Bernard Kimani Gacheru v. Republic, Cr App No. 188 of 2000 this Court 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.

(See also Wanjema v. Republic [1971] E.A 493).”

The Appellant was convicted of committing incest with his stepdaughter who was 15 years old. The trial magistrate in sentencing the Appellant stated that section 20(1) of SOA provided for life imprisonment and that it did not give the court any discretion.

Section 20(1) of the SOA, which provides that: -

(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 lifeand it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person. (Emphasis mine).

Various decisions of the courts have pronounced themselves on the import of the term shall be liable as used in section 20(1) of SOA. The Court of Appeal in MK v Republic [2015] eKLR while interpreting the said section stated thus: -

“The first observation to note is that the phrase “not less than” has not been used in the proviso to Section 20 (1) of the Sexual Offences Act. The inference is that the proviso does not create a minimum sentence. The phraseology and wording in the proviso is that the accused shall be liable to imprisonment for life.

19. What does “shall be liable” mean in law? The Court of Appeal for East Africa in the case of Opoya -v- Uganda (1967) EA 752 had an opportunity to clarify and explain the words “shall be liable on conviction to suffer death”. The Court held that in construction of penal laws, the words “shall be liable on conviction to suffer death” provide a maximum sentence only; and the courts have discretion to impose sentences of death or of imprisonment. The Court cited with approval the dicta in James -v- Young 27 Ch. D. at p.655 where North J. said:

“But when the words are not ‘shall be forfeited’ but ‘shall be liable to be forfeited’ it seems to me that what was intended was not that there should be an absolute forfeiture, but a liability to forfeiture, which might or might not be enforced”.

....

21. Guided by the decision in Opoya -v- Uganda (1967) EA 752 and the persuasive dicta of North J. in James -v- Young 27 Ch. D. at p.655; we are satisfied that the sentence stipulated in the proviso to Section 20 (1) of the Sexual Offences Act is not a minimum mandatory sentence of life imprisonment. The proviso simply states that the trial court has discretion to mete out a maximum term of life imprisonment. Read in conjunction with the general provision in Section 20 (1) we hereby state that the correct interpretation of the proviso in Section 20 (1) is that a person convicted of incest when the female victim is under the age of eighteen years is liable to a term of imprisonment between 10 years and life imprisonment.”

While I find that the sentence is lawful however, it is apparent that the trial Magistrate misdirected himself when he imposed a life sentence on the Appellant as the only available sentence. The trial Magistrate after considering the Appellant’s mitigation could have sentenced the Appellant to any period between 10 years to life imprisonment.

From the record of the trial court that the Appellant was never given an opportunity to mitigate in contravention of section 216 and 329 of the CPC. However, I note that the mitigating factor is that the Appellant is a first time offender as there is no evidence of having any prior criminal records. Further, it is evident that the Appellant was in custody from his arrest on 6th October 2017 until his sentence on 26th October 2018.

On the other hand, the Appellant was the victim’s stepfather and abused his position of authority and trust instead of protecting the victim he became a predator and ended impregnating her. He failed to show any remorsefulness to the offence claiming he was framed despite a DNA test establishing that he was indeed the father of the victim’s child.

I have found that the aggravating factors outweighs the mitigating factors and that the Appellant deserves a deterrence sentence to dissuade any would be offenders from preying on minors under their care. I take into consideration the one year the Appellant spent in custody as stipulated in section 333(2) of the CPC. I hereby set aside the sentence of life imprisonment and substitute it with a sentence of 30 years from the date of arrest.

Orders accordingly.

Judgment delivered, dated and signed at Malindi this 9th day of December, 2020.

..........................

R. NYAKUNDI

JUDGE

In the presence of:

Appellant in person

Mr. Mwangeka for the Respondent