[2022] KEHC 17280 (KLR)

Wafula v Republic (Criminal Appeal 34 (E044) of 2021) [2022] KEHC 17280 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 17280 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal 34 (E044) of 2021

AC Mrima, J

October 6, 2022

Between

Alex Juma Wafula

Appellant

and

Republic

Respondent

((Being an appeal on sentence arising from the conviction and sentence by Hon. V. Karanja, Principal Magistrate in Kitale Chief Magistrate’s Court Sexual Offence Case No. 74 of 2020 delivered on 25/05/2021)

Judgment

1. The Appellant herein, Alex Juma Wafula, was charged with the offence of Defilement contrary to Section 8(1)(4) of the Sexual Offences Act, No 3 of 2006. He denied the offence and a trial was held where he was found guilty as charged, convicted and sentenced to a term of fifteen years in prison.

2. The Appellant initially appealed against both the conviction and sentence. However, at the hearing of the appeal, the Appellant abandoned the appeal on conviction and only pursued the appeal on sentence.

3. In his submissions, the Appellant claimed that the sentence was very harsh. He prayed for a lesser sentence.

4. This Court is the first appellate Court.

5. The Court in Wanjema v Republic (1971) EA 493 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.

6. I have considered this matter with caution and care. The trial stated as follows in sentencing the Appellant: -I have considered the offence and the mitigation. The accused person is sentenced to serve (15) fifteen years imprisonment.

7. It is apparent that apart from considering the nature of the offence and the mitigation, the sentencing Court did not consider any other factors.

8. 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 April 29, 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.

9. In this matter, the Court considered only two parameters in sentencing. Needless to say, there are many other relevant considerations. For instance, the Appellant stated in his defense that he was under a disability and uses only one hand. That issue was not inquired into before sentencing. The Appellant further stated in mitigation that he had a family and parents who are unable to cater for themselves.

10. Likewise, the victim’s position in the matter was not sought. All these issues would have easily been availed to the Court through a Pre-Sentence Report. No such report was called for.

11. Whereas it is not in the law that a Court must always call for a Pre-Sentence Report before passing sentence, such a report becomes crucial especially when a Court is considering a sentence in serious offences. The reports accord the Court a latitude of relevant information. Such a report will also enable the Court to pass a sentence in consonance with the calling to protect of human rights and fundamental freedoms in respect to both the accused and the victim. The report easily aids a Court to attain that balance. For avoidance of doubt, such a resultant sentence would either be lesser that the one rendered in this matter, similar or even a higher one.

12. Whereas the trial Court had the jurisdiction to render the sentence it did, the manner in which it exercised its discretion in arriving at the sentence coupled with the foregoing discussion, falls short of a reflection of all the relevant considerations in sentencing.

13. To that extent, this Court will, with tremendous respect to the sentencing Court, intervene and interfere with the sentence.

14. In the end, the following final orders of this Court do hereby issue: -a.The sentence of fifteen (15) years’ imprisonment rendered on May 25, 2021 is hereby set-aside.b.The Appellant shall be re-sentenced by the trial Court.c.A Pre-Sentence Report be availed before the trial Court.d.The Hon Deputy Registrar of this Court to transmit the trial Court file and a copy of this judgment to the trial Court forthwith.e.This file is hereby marked as Closed.Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 6TH DAY OF OCTOBER, 2022. A. C. MRIMAJUDGEJudgment delivered in open Court and in the presence of:Alex Juma Wafula, the Appellant in person.Miss Kiptoo, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Respondent.Kirong/Chemutai – Court Assistants.