[2023] KEHC 23445 (KLR)

Nyambu v Republic (Criminal Appeal E005 of 2022) [2023] KEHC 23445 (KLR) (12 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23445 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Appeal E005 of 2022

GMA Dulu, J

October 12, 2023

Between

Johnstone Nyambu

Appellant

and

Republic

Respondent

(From the conviction and sentence in Sexual Offence Case No. 2 of 2019 at Wundanyi Law Courts delivered on 27th November 2019 by Hon. E. M. Nyakundi (RM))

Judgment

1. The appellant was charged in the Magistrate’s court with unnatural offence contrary to Section 162 (a) of the Penal Code. The particulars of offence were that on 31st January 2019 at around 4:45p.m in Taita Taveta County had carnal knowledge of SK, against the order of nature.

2. In the alternative, he was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 the particulars of which being that on the same date, place and time intentionally touched the buttocks of SK a child aged 6 years.

3. He denied both charges. After a full trial, he was convicted of the main count of unnatural offence and sentenced to 21 years imprisonment.

4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal and relied on the following amended grounds of appeal:-1. The learned trial Magistrate erred by failing to appreciate that the provisions of Section 200 of the Criminal Procedure Code were not adhered to since the appellant was not informed of his right to recall witnesses and as such the appellant suffered prejudice.2. The sentence imposed was harsh and excessive since it was applied in mandatory terms as provided by the statute without considering the appellant’s mitigation or the unique facts and circumstances of the case.3. The learned Magistrate erred in law and in fact by failing to appreciate that the provisions of Section 214 of the Criminal Procedure Code were not adhered to since the appellant was not informed of his right to recall witnesses and as such, the appellant suffered prejudice.

5. The appeal was canvassed through written submissions. In this regard, I have considered the submissions filed by the appellant as well as the submissions filed by the Director of Public Prosecutions.

6. This being a first appeal, I have a duty to evaluate the evidence on record afresh and come to my own independent conclusions and inferences – see Okeno =Versus= Republic (1972) EA 32.

7. The first ground of appeal relates to alleged non-compliance with the provisions of Section 200 of the Criminal Procedure Code (Cap.75).

8. At the trial, three (3) witnesses testified before E. M. Ndungi Resident Magistrate before he was transferred. The next two (2) prosecution witnesses and the appellant testified before the succeeding Magistrate E. M. Nyakundi Resident Magistrate.

9. I note that on 30th July 2019 the prosecutor specifically asked the court for compliance with Section 200 of the Criminal Procedure Code, but the court record does not specifically state whether that section was complied with. I also note that the appellant was throughout represented by counsel Mr. Mwazighe, and the counsel did not raise any concern.

10. In my view therefore, even if the record does not specifically state that the accused was recorded as having been informed of his right to ask for recall of witnesses under Section 200 Criminal Procedure Code, that section was actually complied with as it was so recorded as having been referred to in the proceedings in the presence of the appellant defence counsel. I dismiss that ground.

11. With regard to proof of the offence, the incident occurred in broad daylight before 6:00p.m. The evidence of PW1 Fredrick Nyambu was that he found the appellant in the act near the road. The evidence of PW2 the complainant and the evidence of PW3 Samuel Chagua Righa, is also very clear and consistent that the appellant took advantage of PW2, a young boy, and committed an unnatural offence with him through the anus near the road. There was thus no possibility of mistaken identity.

12. The medical evidence of PW4 Dr. Furaha Faraji of Wesu Sub County Hospital was also clear that there were noticeable lacerations in the anus of PW2 and some soil, and the penis of the appellant also had some lacerations.

13. In my view, the prosecution proved all the ingredients of the offence and the identity of the culprit beyond any reasonable doubt. It was thus established that indeed the appellant committed the offence. The conviction will be upheld.

14. With regard to sentence, the appellant was sentenced to 21 years imprisonment. Though the appellant states on appeal that the Magistrate did not take into account the mitigating factors, that is not the position as the record shows otherwise. I note that under the Penal Code, the appellant could be sentenced up to 21 years imprisonment as the victim was a child of tender years, and not capable of giving consent to the unnatural act.

15. However, for the reason that the appellant was a young man, a first offender and remorseful, I consider that the maximum sentence for the offence meted by the trial court was not appropriate. I will thus reduce the sentence to fourteen (14) years, as in my view the sentence imposed was harsh and excessive.

16. Consequently and for the above reasons, I dismiss the appeal on conviction and uphold the conviction. As for sentence, I set aside the sentence imposed and instead order that the appellant will now serve fourteen (14) years imprisonment from the date he was sentenced by the trial court. Right of appeal explained.

DATED, SIGNED AND DELIVERED THIS 12TH DAY OF OCTOBER 2023 IN OPEN COURT AT VOI.GEORGE DULUJUDGEIn the presence of:-Ms. Ondeyo for StateAppellant