[2023] KEHC 25483 (KLR)

Ongola v Republic (Criminal Appeal E108 of 2022) [2023] KEHC 25483 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25483 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E108 of 2022

RPV Wendoh, J

November 16, 2023

Between

Jairus Owuor Ongola

Appellant

and

Republic

Respondent

(From original conviction and sentence by Hon. M. Obiero – Senior Principal Magistrate in Chief Magistrate’s Court at Migori Criminal Case No. E 089 OF 2021 delivered on 30/05/2022)

Judgment

1. Jairus Owuor Ongola, the appellant, was convicted by Senior Principal Magistrate Migori, for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act.

2. In the alternative, he had been charged with the offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act.

3. The particulars of the charge were that on 13/12/2021 at Kamenya Sub Location, wilfully and unlawfully caused his penis to penetrate the vagina of SAO a child aged 12 years or that he caused his penis to come into contact with the vagina of SOA a girl aged 12 years.

4. Upon conviction on the main charge, the appellant was sentenced to serve twenty (20) years imprisonment. The appellant is aggrieved by the judgment and has appealed against both conviction and sentence and filed grounds in support thereof.

5. However, on 7/11/2023, the appellant filed amended grounds of appeal abandoning the earlier grounds on both conviction and sentence and only appeals against sentence. In his grounds of appeal on sentence, he pleaded that the sentence was harsh and excessive bearing in mind that he was a first offender; that the court went against paragraph 4. 1 of the Judiciary Sentencing Policy; that he is remorseful and regrets his actions; that he is a young man who was supporting his family; that the court should invoke Section 333 (2) of the Criminal Procedure Code and substitute the remaining sentence with a non -custodial sentence. He prays that the court sets him at liberty or places him on community service.

6. In his submissions, the appellant urged that the court should take into account the circumstances of the case, whether the complainant was injured and bear in mind the principles of the Sentencing Policy Guidelines which are deterrence and correction as was held in Thomas Mwambu Wenyi v Republic (2017) eKLRwhich cited the case ofAlister Anthony Pereira vs. State of Maharashtra paragraph 70-71. He also relied on the decisions of Philip Mueke Maingi and Edwin Wachira v Republic where the court set aside twenty (20) years imprisonment to ten (10) years. The appellant urged the court not to be fettered by the provisions of Section 8(3) on mandatory minimum sentence.

7. As regards paragraph 4. 1 of the Sentencing Policy Guidelines, the appellant submitted that the court should consider the violence or harm done to the complainant if any and that in this case, there was none. He relied on the decision of Douglas Muthaura Ntoribi vs. Republic (2018) eKLR where the court observed that even offenders can be reformed in prison. He also urge d the court to order the sentence to commence from the time he was arraigned in court as was held in Ahamad Abolfathi Mohammed & Another v Republic (2018) eKRL.The prosecution counsel filed submissions where he contended that the three ingredients required to prove an offence of defilement were proved beyond reasonable doubt; that the complainant gave a graphic account of how the appellant took her to a thicket and inserted his genital organ into hers. As for penetration, the complainant was found to be injured on her genitalia and was bleeding. On identification, the complainant knew the appellant by name and the incident took place at about 5:00 p.m. He urged that the appellants defence was considered and that the sentence was very lenient considering the aggravating circumstances. He urged the court to dismiss the appeal on sentence.

8. I have duly considered the submissions made by both parties, and the evidence on record. I do agree with the appellant as regards the objectives of the Sentencing Policy. It is meant to deter would be offenders and corrective because to those who have already committed the offence. The court in Thomas Mwambu Wenyi citing Alister Anthony Pereira case (supra) when it said:-“Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no strait jacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”

9. In Sentencing, the court is guided by the law, Sentencing Policy Guidelines and the Special Circumstances of each case. In this case, even though the appellant did not beat the complainant, the emotional violence meted on the complainant cannot be measured. Besides, the innocence of the child was stolen by the appellant and he cannot tell this court that no violence was visited on the child. The complainant suffered injuries to her genitalia, was bleeding and was found crying by PW2. No doubt violence was meted on the complainant by the appellant’s actions.

10. In the case of Daniel Gichimu & Another v Republic (2018)eKLR relied upon by the appellant. In that case, the court in sentencing, considered the violence meted on the complainant to be minimal and is distinguishable from this case. That was a case of robbery with violence. This is a case of defilement and the complainant suffered psychologically, emotionally and real physical violence.

11. In mitigation, the appellant said that he was a first offender, an orphan and ha d siblings who rely on him and therefore prayed for leniency. The court considered the said mitigation. The appellant is a young man aged about 23 years now because he was twenty (20) years in 2020.

12. I do note that the court sentenced the appellant to the mandatory minimum sentence of twenty (20) years under Section 8(3) of the Sexual Offences Act. The courts are tending to move away from mandatory minimum sentences because minimum sentences fetter the court’s discretion in sentencing. Instead, a court will consider the special circumstances of each case including the age of both victim and appellant. In the instant case however, I find that the offence is very serious, the appellant took advantage of the complainant, stealing her innocence leaving her injured and wounded and deserves to serve a corrective and deterrent sentence. Having considered the mitigation and especially the age of the appellant, I hereby set aside the sentence of twenty (20) years imprisonment and substitute it with fifteen (15) years imprisonment. I take into account Section 333 (2) Criminal Procedure Code and I direct that the sentence do take effective from 17/12/2021 when the appellant took plea. The appeal succeeds to that extent.

DELIVERED, DATED AND SIGNED AT MIGORI THIS 16TH DAY OF NOVEMBER, 2023. R. WENDOHJUDGEIn presence of; -Mr. Kaino for the stateAppellant PresentMS. Emma/ Phelix –Court Assistant