[2014] KEHC 4187 (KLR)
The court found that the sentence of a fine for attempted rape under the Sexual Offences Act was illegal because the Act does not provide for a fine as a penalty for this offence. The sentences for assault and stealing, though lawful in terms of fines, had erroneous default imprisonment terms. Furthermore, since the...
Source-derived case information.
- Citation
- [2014] KEHC 4187 (KLR)
- Parties
- Appellant: Robert Muriithi Mugo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 18 of 2012
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- appeal allowed in part (sentence only)
- Judges
- HI Ong'udi
- Legal Topics
- Sentencing Principles, Sexual Offences, Assault, Theft, Concurrent Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Muriithi Mugo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence imposed for attempted rape under the Sexual Offences Act was lawful.
- 2 Whether the sentences for the three counts should run consecutively or concurrently.
- 3 Whether the default sentences for non-payment of fines on counts 2 and 3 were proper.
Ratio Decidendi
The court found that the sentence of a fine for attempted rape under the Sexual Offences Act was illegal because the Act does not provide for a fine as a penalty for this offence. The sentences for assault and stealing, though lawful in terms of fines, had erroneous default imprisonment terms. Furthermore, since the offences were committed in a series, the sentences should have been ordered to run concurrently rather than consecutively. The court therefore set aside the original sentences and substituted them with custodial sentences of five years for attempted rape, two years for assault causing actual bodily harm, and one year for stealing, all to run concurrently from the date of...
Court Disposition
appeal allowed in part (sentence only)
Orders
- The sentence of a fine for count 1 (attempted rape) is set aside and substituted with five years imprisonment.
- The sentences for counts 2 (assault) and 3 (stealing) are set aside and substituted with two years and one year imprisonment respectively.
Full Case Text
Judgment text and source record
52 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL APPEAL NO. 18 OF 2012
ROBERT MURIITHI MUGO………………......................................APPELLANT
VERSUS
REPUBLIC………………………..………..……………….............…..…..RESPONDENT
From original conviction and sentence in Cr. Case No. 1245 of 2010 at the Chief Magistrate’s Court at Embu by HON. R.M. OANDA– RM on 25TH JANUARY 2012
J U D G M E N T
ROBERT MURIITHI MUGO was charged with the following offences;
Count 1
Attempted Rape contrary to section 4 of the Sexual Offences Act No.3 of 2006
The particulars as stated in the charge sheet were as follows;
On the 4th day of June 2010 in Embu North District of the Eastern Province, intentionally and unlawfully attempted to cause his penis to penetrate the vagina of CWN without her consent.
Count II
Assault causing actual bodily harm contrary to section 251 of the Penal Code
The particulars as stated in the charge sheet were as follows;
On the 4th day of June 2010 in Embu North District of the Eastern Province, unlawfully assaulted CWN thereby occasioning her actual bodily harm.
Count III
Stealing contrary to section 268(1) as read with section 275 of the Penal Code
The particulars as stated in the charge sheet were as follows;
On the 4th day of June 2010 in Embu North District of the Eastern Province, stole cash kshs.4,050/= the property of CWN.
The matter proceeded to full trial and he was convicted on all counts and sentenced as follows;
Count 1 – shs.30,000/= in default five (5) years imprisonment
Count 2 – shs.10,000/= in default two (2) years imprisonment
Count 3 – shs.5,000/= in default one (1) year imprisonment
The sentences were to run consecutively if the fines were not paid as is the case here.
He filed this appeal challenging both conviction and sentence. However when the appeal came for hearing he withdraw his appeal on conviction and pursued the one on sentence only.
The State opposed the appeal on sentence but at the same time Mr. Wanyonyi the learned State Counsel conceded that the sentence on count 1 was illegal. He referred this Court to the case of GEOFFREY WANDERI CHEGE –V- REPUBLIC NAIROBI CRIMINAL CASE NO.623/04 and submitted that the sentences herein should not be interfered with as they were neither harsh nor excessive.
The Prosecution called a total of seven (7) witnesses. The complainant (PW1) and her neighbour (PW5) were walking home on 4/6/2010 at 7. 20pm. They were joined by another neighbour who is the Appellant. They walked together. PW5 branched to her home while PW1 and the Appellant walked on.
When they reached near the Appellant’s house the Appellant told her she could not leave him that way. They struggled and she made to run. The Appellant held her and threw her on the ground.
He threatened her against screaming. He unzipped her trouser (EXB2) which he also tore. He also tore her blouse (EXB3).
He took her handbag (EXB6) which contained her treatment notes (EXB7), application form (EXB4) and cash shs.4,050/=. The handbag was later found thrown on the road.
She screamed and he went away. PW1 was treated and the matter was reported. Dr. Godfrey Njuki (PW4) confirmed the injuries (EXB1).
Indeed the evidence confirms that the Appellant tried to rape PW1 and in the process assaulted her and stole from her.
I find the conviction on the three (3) counts to be founded on sound evidence.
I only have a problem with the sentence. First of all there is no provision for fines under the Sexual Offences Act. The sentence on count 1 is therefore illegal and is hereby set aside.
Considering that the offences in count 1 – count 3 were committed in a series and the sentence should have been given in such a manner that they could run concurrently. It follows that the options of the fines in count 2 and count 3 though lawful the default sentences are erroneous.
I therefore set aside the sentences in Count 2 and Count 3 as well.
I substitute the sentences as follows;
Count 1 – five (5) years imprisonment
Count 2 – two(2) years imprisonment
Count 3 – one (1) year imprisonment
The sentences to run concurrently from the date of conviction.
The appeal only succeeds on sentence to the extent explained above in paragraph 15.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT EMBU THIS 20TH DAY OF JUNE 2014.
H.I. ONG'UDI
JUDGE
In the presence of:-
M/s Mbae – State
Appellant
Njue/Kirong – C/c