[2023] KEHC 26427 (KLR)

Otieno v Republic (Criminal Appeal E036 of 2023) [2023] KEHC 26427 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26427 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal E036 of 2023

RE Aburili, J

November 30, 2023

Between

Reagan Ochieng Otieno

Appellant

and

Republic

Respondent

(Appeal from the judgment, conviction and sentence imposed by Hon. P.K. Rugut, SPM in Tamu Sexual Offences Case No. E019 of 2022)

Judgment

1. This appeal was heard this morning by way of oral submissions. As the appeal was on sentence alone, I did not see the need to reserve it beyond today for writing of the judgment on sentence only, yet there have been several pronouncements of similar nature in appeals of this type.

2. The appellant herein is Reagan Ochieng Otieno. He was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. Particulars of the offence are that on the diverse dates between 14th day of October 2022 and 15th October, 2022 in Muhoroni Sub County within Kisumu County, he intentionally caused his penis to penetrate the vagina of ISO, a child aged 14 years.

3. The appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006, by intentionally touching the vagina of ISO a child aged 14 years with his penis.

4. The appellant had initially pleaded guilty to the charge of defilement by stating that he was aged 18 years old and that they had consensual sex with the complainant but when facts were read out to him, he qualified some facts hence a plea of not guilty was entered and the case proceeded to full trial.

5. After a full trial, the trial court found the appellant guilty of the offence and after mitigations, sentenced him to serve twenty-20 years imprisonment.

6. The appellant filed his petition of appeal dated 11th July 2023 after obtaining leave to appeal out of time vide High Court Miscellaneous Criminal Application No. E025 OF 2023.

7. This appeal which is against sentence only was filed on 16th August, 2023 claiming that the sentence imposed was excessive and not proportional considering that he was a first offender and the sentence imposed was mandatory in nature.

8. The appeal was argued orally with the appellant submitting reiterating his grounds of appeal and urging the court to reduce for him the sentence as imposed. He submitted that he was sorry for committing the offence. He is a first offender and he was aged 23 years old at the time of the offence.

9. The prosecution counsel left it to the court to exercise discretion in sentencing.

10. I have considered the appeal which is only seeking for the discretion of the court in resentencing. I observe that the appellant from the onset, readily admitted committing the offence albeit he claimed that the two had consensual sex. There can be no consensual sex with a child.

11. According to the trial magistrate in his sentencing remarks, the trial court’s hands were tied to the mandatory minimum sentence provided for in section 8(3) of the Sexual Offences Act, in accordance with Muruatetu II decision.

12. Since the appellant is only appealing against sentence, it is important to set out the circumstances under which an appellate court would interfere with sentence. The principles guiding interference with sentence imposed by the trial Court were properly set out in S vs. Malgas 2001 (1) SACR 469 (SCA) at para 12 where it was held that:“A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court…However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”

13. Similarly, in Mokela vs. The State (135/11) [2011] ZASCA 166, the Supreme Court of South Africa held that:“It is well-established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served.”

14. The then Court of Appeal for Eastern Africa in the case of Ogolla s/o Owuor vs. Republic, [1954] EACA 270 stated as follows on this issue:“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”

15. Odunga J (as he then was stated as follows in Antony Musembi Mutisya v Republic [2019] eKLR, which decision I have cited herein in extensor as it is in pari materialwith this case:“To this, I would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case”. (R - v- Shershowsky (1912) CCA 28TLR 263) while in the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus:-“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306).”

16. The Court of Appeal in Bernard Kimani Gacheru vs. Republic [2002] eKLR restated that:“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 states is shown to exist.”

17. In the instant case, the appellant was charged under section 8(1) as read with section 8(3) of the Sexual Offences Act. The section provides that:(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.

18. Section 8(3) of the Sexual Offences Act applies the phrase is liable upon conviction to imprisonment for a term of not less than twenty years. Sir Henry Webb C.J. in Kichanjele S/O Ndamungu versus Republic (1941) 8 EACA 64 had this to say on the proper construction of the words “liable to”:“The wording used throughout the code is “shall be liable to” but a consideration of the various sections shows in our judgment, that the use of the words “shall be liable to” does not import that the sentence mentioned in any particular section in which these words occur is merely a maximum and that the court may impose any lesser sentence below the limit indicated.”

19. In Opoya versus Uganda [1967] EA 752 at page 754, Sir Clement DeLestang V.P. picked up the conversation and stated inter alia thus:“It seems to us beyond argument that the words “shall be liable to” do not in the ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words they are not mandatory but provide a maximum sentence only and while the liability existed, the court might not see fit to impose it.”

20. A similar position was adopted in D W M vs. Republic (supra) where the Court held that:“As for the sentence the 1st appellate court properly addressed its mind to the operative words in Section 20(1) of the Sexual Offences Act that the offender “Shall be liable to imprisonment for life” means that imprisonment for life was the maximum sentence for an offence under the section. A lesser sentence could be imposed considering that the appellant was a first offender though the offence was said to be prevalent, serious and most importantly that the appellant who was supposed to be the complainant's protector turned out to be her tormentor and perpetrator of the defilement. The judge however deemed it proper to substitute the sentence for life imprisonment with that of twenty (20) years imprisonment and it was within his powers to do so. The resulting sentence was within the limits permitted by law and we find no reason to interfere with the exercise of that discretion.”

21. In this case, however, the relevant provisions use the phrases “is be liable to” and “not less than” in the same breath. As a result, as correctly pointed out by Odunga J in the case herein cited extensively:“the two provisions suffer from the malady of poor legal draftsmanship since the two phrases imply, in legal terms, diametrically opposed positions. In criminal law, where there is an ambiguity in phraseology of sentencing the accused is entitled to the benefit of the least severe of the prescribed punishments for an offence, since as Mativo, J graphically put it in Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR:“The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favourite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea.”See also Evanson Muiruri Gichane vs. Republic [2010] eKLR and Tom Ochieng Wayumba vs. Director of Public Prosecutions [2019] eKLR.

22. It is therefore my view that the twin subsections must be read as if the sentences provided are the maximum sentences. Accordingly, bearing the totality of the above principles in mind, it is my view that the use of the words “is liable to imprisonment” in section 8(3) and (4) of the Sexual Offences Act gives room for the exercise of judicial discretion. The learned trial magistrate stated that his hands were tied to the Muruatetu II decision clarifying the that the Muruatetu 1 decision only applied to murder cases. That may have been the case but in view of my analysis above as clearly brought out by Odunga J, which analysis I adopt fully, I find that the trial court was not deprived of the discretion to impose an appropriate sentence having regard to the circumstances of the case and mitigations.

23. I however find that the offence committed was against a minor child and the Sexual Offences was enacted with the sole purpose of protecting children who are vulnerable and incapable of consenting to sex with adults like the appellant herein. This court cannot, therefore, close its eyes from the fact that the crime committed by the appellant was a heinous crime. In Tito Kariuki Ngugi vs. Republic [2008] eKLR the court held that:“The Appellant caused her trauma which she will have to live with for the rest of her life.”

24. Clearly, this Court does not and will not condone offences against minors and vulnerable persons. As was stated by Madan, J (as he then was) in Yasmin vs. Mohamed [1973] EA 370:“The High Court is especially endowed with the jurisdiction to safeguard the interests of infants, as the court is the parent of all infants. The welfare of the infants is paramount and it is dear to the heart of the court. There would be no better tribunal to perform the task more wisely as well as affectionately. All infants in Kenya of whatever community, tribe, sect fall within the ambit of the Guardianship of Infants Act and the court is charged with the sacred duty of ensuring that their interests remain paramount and are duly preserved.”See also Omari vs. Ali [1987] KLR 616.

25. However, the accused is a first offender. In Charo Ngumbao Gugudu vs. Republic [2011] eKLR, the Court of Appeal held that:“It has long been a principle of sentencing that a maximum sentence should only be meted out to the worst offender under the particular section that the offender is charged. In this appeal, the appellant was a first offender aged about 22 at the time of the offence. It is true that the complainant suffered serious injuries but it is equally true that the appellant was provoked at the time that he hit the complainant. There was no basis for the finding made by the trial magistrate and upheld by the superior court, that the complainant was “completely mentally disabled”.”

26. The appellant has also owned up to the offence and pleaded for leniency. he has not challenged his conviction. He was a young adult aged 23 years as at the time of the offence. In my view the sentence meted out to the appellant was clearly excessive in light of my findings above.

27. Considering the circumstances of the case, it is my view that 10 years’ imprisonment would be sufficient punishment.

28. In addition, as the appellant was not released on bond during the trial in the lower court, Section 333(2) of the Criminal Procedure Code provides that:(2)Subject to the provisions of section 38 of the Penal Code every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

29. It is therefore clear that the period which an accused has been held in custody prior to being sentenced must be taken into account in meting out the sentence. While the court may in its discretion decide that the sentence shall run from the date of sentencing or conviction, it is my view that in departing from the above provisions, the court is obliged to give reasons for doing so since the decision not to include the period spent in custody is an exception to the statutory provision that can only be justifiable upon reasonable grounds and as I have stated above, the accused is entitled to the benefit of the least severe of the prescribed punishments for an offence.

30. As was stated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR that:“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012. ”

31. Further in Bethwel Wilson Kibor vs. Republic [2009] eKLR the Court of Appeal xpressed itself as follows:“By proviso to section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody. Ombija, J. who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at 22nd September, 2009 he had been in custody for ten years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.”

32. In addition, The Judiciary Sentencing Policy Guidelines provide inter alia, that:The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.

33. In this case, the learned trial magistrate did not state when the sentence meted would commence. In my view it is necessarily that there be an indication of the same particularly where an accused has been in custody for a long period before being sentenced. In this case, the accused was arrested on 15/10//2022. There is no evidence that the appellant was accorded an opportunity to be released on bond or bail pending trial.

34. Accordingly, I hereby quash the mandatory twenty year prison sentence imposed on the appellant herein and substitute therefor a sentence of ten(10) years’ imprisonment. The said period will run from 15/10/2022.

35. The lower court file together with copy of judgment be returned.

36. Signal to issue.

37. This file is closed.

38. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 30TH DAY OF NOVEMBER, 2023R.E. ABURILIJUDGE