[2023] KEHC 24036 (KLR)

Wakuthie v Republic (Criminal Appeal 53 of 2018) [2023] KEHC 24036 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24036 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Criminal Appeal 53 of 2018

FN Muchemi, J

October 24, 2023

Between

Martin Wachira Wakuthie

Appellant

and

Republic

Respondent

(Being an Appeal from the sentence imposed by Honourable G. K. Odhiambo (RM) in Gichugu PM, Criminal Sexual Offence Case No. 14 0f 2018 on 20/9/2018)

Judgment

Brief Facts 1. The appellant lodged this appeal against the entire judgment of the Resident Magistrate Gichugu whereas he was charged and convicted of the offence of defilement contrary to Section 8(1) as read with 8(3) of the Sexual Offences Act No. 3 of 2006 He was sentenced to twenty years imprisonment.

2. The petition of appeal was filed on 27th September 2018 against both conviction and sentence. On 1st August 2023, a notice of withdrawal of appeal in regard to sentence was filed. This court is therefore dealing with the appeal only on sentence. He then filed submissions on the appeal on sentence. The appellant said he had spent five years in prison and undertaken several courses including tailoring whereas he had attained three certificates of different grades. Due to the courses he had taken and the period spent in prison the appellant said he had reformed and was fully rehabilitated. Relying on the case of Maingi & 5 Others vs Director of public prosecutions & Another [2022] eKLR, the appellant urged the court to grant him a lesser sentence other than the life imprisonment imposed on him by the trial court.

3. The learned prosecution counsel for the respondent opposes the appeal and submits that the appellant was granted time to mitigate and thereafter a Social Inquiry Report was order before he was sentenced. He further submits that the sentence is lawful.

4. The main issue for determination is whether the sentence imposed on the appellant was lawful and commensurate with the offence.

The Law 5. This being an appeal only against the sentence, it is important to determine the circumstances under which an appellate court will interfere with the sentence of a trial court. The principles guiding interference with sentencing by the appellate court were properly in my view, set out in S. vs Malgas 2001 (1) SACR 469 (SCA) at para12 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” 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.

6. The predecessor of the Court of Appeal in the case of Ogolla s/o Owuor vs Republic [1954] EACA 270 pronounced itself on this issue as follows:-“The court does not alter a sentence unless the trial judge has acted upon wrong principles or overlooked some material factors.”

7. The Court of Appeal, on its part 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 stated is shown to exist.”

8. Section 8(3) of the Sexual Offences Act states as follows:-“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.

9. Section 8(3) provides a mandatory minimum sentence of 20 years for anyone convicted under the section and whereas the victim is aged between 12 and 15 years. The issue is whether this court on appeal can interfere with the sentence imposed under the sexual offences Act which provides for minimum sentences.

10. The Supreme Court decision in declared unconstitutional the mandatory death sentence under Section 204 of the Penal Code. The petitioners had been charged and convicted of the offence of murder. In Muruatetu II, 2019, the Supreme Court gave directions base on Muruatetu 1 that the decision of the court was only applicable in offences under 204 of the Penal Code. It was therefore made clear that the decision was not applicable to sexual offences.

11. The Court of Appeal went further in developing jurisprudence in the subject of minimum sentences in the recent case of Julius Kitao Manyeso Vs Republic in Malindi Criminal Appeal No. 12 of 2021. The bench of Nyamweya, Lessit, Odunga JJA on 7th July 2023 held that the principles laid down in Muruatetu 1 are applicable to minimum sentence in sexual offences. The court was dealing with a second appeal of conviction in defilement whereas the High Court had upheld conviction and the minimum sentence of life imprisonment. The court of Appeal upheld conviction but set aside the sentence of imprisonment and substituted it with a sentence of 40 years imprisonment.

12. It is now clear that based on growth of jurisprudence in this county, the courts have discretion to impose an appropriate sentence in cases before them not withstanding that the law has not been amended by the legislature.

13. The appellant in this case had given his mitigation before the trial court that he seeks for forgiveness. In his submissions, the appellant expressed remorsefulness and said that he had learnt from his mistake. The complainant testified that the appellant abducted her and took her to his grandmother and introduced her as his wife when she protested, the appellant threatened to kill her with a knife. The victim spent (4) days in the house of the appellant. The act of defilement at the age of the victim was no doubt traumatising and disruptive of the child’s school life. In considering the appropriate sentence, the court must keep in mind that a deterrent sentence ought to be imposed to discourage such offences.

14. Consequently I make the following orders:-a.The appeal on sentence is hereby allowed.b.That the sentence of twenty years imprisonment is hereby set aside and substituted with fifteen (15) years imprisonment.

15. That is hereby so ordered.

DATED AND SIGNED AT KERUGOYA THIS 24TH DAY OF OCTOBER, 2023. F. MUCHEMIJUDGEJudgement delivered through video link this 24th day of October, 2023