[2023] KEHC 26868 (KLR)

PWW v Republic (Criminal Appeal 44 of 2020) [2023] KEHC 26868 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26868 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal 44 of 2020

AC Mrima, J

December 14, 2023

Between

PWW

Appellant

and

Republic

Respondent

(Appeal arising out of the conviction and sentence of Hon. C. M. Kesse (Senior Resident Magistrate) in Kitale Chief Magistrate’s Court Criminal Case (S.O) No. 254 of 2019 delivered on 1st September, 2020)

Judgment

Introduction 1. The Appellant herein, PWW, was charged with the offence of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act before the Chief Magistrates Court at Kitale in Sexual Offence No. 254 of 2019 (hereinafter referred to as ‘the criminal case’). The particulars of the offence were as follows:On the 21st day of October, 2019 in Trans Nzoia East Sub-Cunty within Trans-Nzoia County, the Appellant unlawfully and intentionally caused his penis to penetrate into the vagina of XY, a child aged ten years.

2. In the alternative, the Appellant was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the offence were that on the same day and in same place, the Appellant unlawfully and intentionally touched the vagina of XY, a child aged 10 years old with his penis.

3. The Appellant denied all the charges and he was tried. After a full trial, the Appellant was found guilty of defilement and was convicted accordingly. He was then sentenced to 20 years’ imprisonment.

The Appeal: 4. The Appellant was utterly aggrieved by the conviction and sentence. He subsequently lodged an appeal.

5. The Appellant filed an original Petition of Appeal on 14th September, 2020 where he challenged both the conviction and sentence. He later filed another Petition of Appeal where he abandoned the contest against the conviction. The written submissions also filed did not have anything to do with the aspect of the conviction. In his subsequent Petition of Appeal, the Appellant challenged the sentence to the extent, and so alleged that, it was excessive and harsh. He prayed for a lenient sentence.

6. During the hearing of the appeal, the Appellant relied on his written wherein he reiterated his plea for a lenient sentence.

7. On the part of the prosecution, although the Appellant had substantively abandoned the appeal on conviction, the State conceded to the appeal on the basis of the age of the victim having not been proved. It urged that the appeal be allowed.

Analysis: 8. The appeal herein is basically on sentence. However, before the Court addresses the aspect of sentence, it is imperative to deal with the concession on the appeal by the State.

9. It was the State’s position that the age of the victim was not proved. Four witnesses testified in this case. They were the victim who testified as PW1, the mother of the victim as PW2, a Clinical Officer as PW3 and the Investigating Officer as PW4.

10. PW1 was taken through a voir direexamination. The trial Court was satisfied that she was capable of giving sworn evidence. She testified that she was 10 years old. PW2 also testified on the age of PW1. She was the mother. She stated that PW1 was 10 years old in September 2019 and 11 years old in 2020. There was also a P3 Form which was produced by PW3. It indicated that PW1’s estimated age was 10 years old.

11. The age of a person may be proved by way of medical evidence. That may include a Certificate of Birth, a Notification of Birth, a Child’s Clinic Attendance Report, Age Assessment Report among others. Further, one’s age can also be proved by way of identification documents like an identity card, Passport, School identity cards and registers, among others. The age can also be proved by the evidence of a parent, a sibling or any one having close ties with the subject and even by the subject himself or herself. Even the Court can also look at a person before it and decide if such is a child or otherwise.

12. In this case, the age of PW1 was proved in three ways. That was by PW1 herself, PW2 (the mother) and the P3 Form. Therefore, this Court is satisfied that the age of PW1 was proved as required in law to be 10 years in 2019 when the offence was committed. PW1 was, hence, a child in law.

13. Having said as much, this Court will now consider the appeal against the sentence.

14. It was held in Wanjema v. Republic (1971) EA493 laid down the general principles upon which the first appellate Court may act on when dealing with an appeal on sentence. An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact or that it considered an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate Court must not lose sight of the fact that in sentencing, the trial Court exercised discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion.

15. I have considered this matter with caution and care. The trial Court was careful in the manner it conducted the sentencing proceedings.

16. The Court considered the nature of the offence and the mitigation, among other relevant actors.

17. Sentencing is a crucial part in the criminal process and the administration of justice. It is also discretionary. In exercising the discretion, a sentencing Court is called upon to be guided by a raft of considerations. Such are discussed at length in the Sentencing Guidelines published on 29th April, 2016 vide Gazette Notice No. 2970 by the Hon. The Chief Justice of the Republic of Kenya who is also the Chairperson of the National Council on the Administration of Justice (NCAJ) and in case law including the Supreme Court in Petition No. 15 of 2015 Francis Karioko Muruatetu & another v Republic [2017] eKLR.

18. This Court does not see how the sentencing proceedings are to be impugned. This Court, however, posits that it would have been more assuring for the Court to have called for a Pre-Sentence Report given the gravity of the offence and the possible sentence. Although that did not happen, given the age of the victim, the relationship between the victim and the Appellant (being a Step-father) and the trust the victim bestowed on the Appellant, the sentence rendered cannot be faulted.

19. In the end, the following final orders of this Court do hereby issue: -a.The entire Appeal is dismissed.b.This file is hereby marked as closed.

20. Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 14TH DAY OF DECEMBER, 2023. A. C. MRIMAJUDGEJudgment delivered in open Court and in the presence of: -Peter Kimutai Cherop, the Appellant in person.Miss Kagali, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Respondent.Chemosop/Duke – Court Assistants.