[2022] KEHC 13489 (KLR)

Wambua v Republic (Criminal Appeal E049 of 2021) [2022] KEHC 13489 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13489 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Criminal Appeal E049 of 2021

HPG Waweru, J

October 6, 2022

Between

Dominic Mwania Wambua

Appellant

and

Republic

Respondent

(Appeal from original Sentence in Nanyuki CM Sexual Offence Case No 68 of 2018 – V M Masivo, RM)

Judgment

1. The Appellant herein, DOMINIC MWANIA WAMBUA, was convicted after trial of defilement contrary to section 8(1) & (3) of the Sexual Offences Act, No 3 of 2006 (the Act). It was alleged that on 07/09/2018 at [Particulars withheld] area of Nanyuki Town within Laikipia County, he intentionally and unlawfully caused his penis to penetrate the vagina of one JM, a girl-child aged 15 years. On 18/09/2019 he was sentenced to 20 years imprisonment, the sentence to run form 10/09/2018 when he was arraigned in court and remanded in custody during his trial. He has appealed only against that sentence, stating that he was satisfied with the conviction.

2. The appellant submitted that in the circumstances of this case the sentence was manifestly harsh and excessive. Learned counsel for the respondent on his part submitted that the sentence was lawful and the mandatory minimum prescribed by law.

3. I have considered the rival submissions. In sentencing the appellant the trial court held that its hands were tied, and that it must impose a sentence of not less than 20 years imprisonment which it thought was mandatory. Section 8(3) of the Act states –“8. (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.”The use of the term“…is liable upon conviction to imprisonment for a term of not less than twenty years…”in ordinary English means that the trial court has a discretion whether to impose a custodial sentence or some other kind of punishment, say a fine, an order of probation or discharge (conditional or otherwise). It does not mean that the trial court is bound to impose imprisonment in all cases. But once the trial court decides that the accused deserves a custodial sentence, then it must impose a term of imprisonment of not less than 20 years.

4. But even that, with the declaration of unconstitutionality in respect to the mandatory nature of the death sentence for murder in the now notorious Muruatetu Case because of interference with the court’s discretion in sentencing, the trial court can consider a shorter sentence than the minimum term prescribed, as the principle of unconstitutionality in respect to mandatory sentences ought to apply across the board.

5. In the present case the trial court did not seem to be aware of the discretion apparent in the use of the term “…is liable upon conviction to imprisonment…” instead of “…shall upon conviction be sentenced to…” as in section 8(2) of the Act. However, even if the court had been aware of that discretion, it seems unlikely that it would have considered a non-custodial sentence for the Appellant, who obviously deserved a custodial sentence for preying on such a young school girl.

6. That notwithstanding, the Appellant was a young man of 24 years of age, with a very young family that depended upon him. He was a first offender and deserved a second chance. I consider that 20 years imprisonment was manifestly harsh and excessive in the circumstances of this case.

7. I will in the event partially allow this appeal against sentence by setting aside the twenty (20) years imprisonment awarded and substituting therefor seven (7) years imprisonment, the same to run form 10/09/2018 as had been directed by the trial court. It is so ordered.

DATED AND SIGNED AT NANYUKI THIS 5TH DAY OF OCTOBER 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 6TH DAY OF OCTOBER 2022