[2022] KEHC 18042 (KLR)

Wanjala v Republic (Criminal Appeal E091 of 2021) [2022] KEHC 18042 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 18042 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal E091 of 2021

AC Mrima, J

October 6, 2022

Between

Jonny Opicho Wanjala

Appellant

and

Republic

Respondent

(Being an appeal on sentence arising from the conviction and sentence by Hon. D. K. Mutai, Senior Resident Magistrate in Kitale Chief Magistrate’s Court Sexual Offence Case No. E040 of 2021 delivered on 25/10/2021)

Judgment

1. The appellant herein, Jonny Opicho Wanjala, was charged with the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act, No 3 of 2006. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, No 3 of 2006.

2. He denied the offences and a trial was held where he was found guilty of the offence of defilement, convicted and sentenced to a term of fifteen years in prison. The court also found the appellant guilty of the alternative count and convicted him. He was, however, acquitted under section 35(1) of the Penal Code on the alternative charge.

3. 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.

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

5. This court is the first appellate court.

6. 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.

7. I have carefully considered the record. The trial court partly stated as follows in sentencing the appellant: -Mitigation considered. Accused person is a first offender. However, section 8(4) of the Sexual Offences Act provides a minimum sentence when a victim of offence under section 8(1) is 16 years old. In the circumstances the accused person is sentenced to serve 15 years imprisonment on the charge in the main count…...

8. It is the case that the court was guided by the provisions of section 8(4) of the Sexual Offences Act in passing the sentence. The court handed down the minimum sentence of fifteen years’ imprisonment.

9. Section 8(4) of the Sexual Offences Act states as follows: -A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.

10. The above provision apparently provides a minimum sentence of not less than fifteen years imprisonment on conviction.

11. The constitutionality of minimum sentences has been considered by courts and it is now well settled that such sentences, just like mandatory sentences, do not pass the constitutional muster under article 50(1) of the Constitution for they infringe on the right to fair trial by interfering with the discretion of a sentencing court. I will consider some few decisions to that end.

12. The Supreme Court in petition No 15 of 2015 Francis Karioko Muruatetu & another v Republic [2017] eKLR addressed the issue of mandatory sentences in section 204 of the Penal Code, cap 63 of the Laws of Kenya in the following manner: -[47]Indeed the right to fair trial is not just a fundamental right. It is one of the inalienable rights enshrined in article 10 of the Universal Declaration of Human Rights, and in the same vein article 25(c) of the Constitution elevates it to a non-derogable right which cannot be limited or taken away from a litigant. The right to fair trial is one of the cornerstones of a just and democratic society, without which the rule of law and public faith in the justice system would inevitably collapse.[48]Section 204 of the Penal Codedeprives the court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under articles 25 of the Constitution; an absolute right.[49]With regard to murder convicts, mitigation is an important facet of fair trial. In Woodson as cited above, the Supreme Court in striking down the mandatory death penalty for murder decried the failure to individualize an appropriate sentence to the relevant aspects of the character and record of each defendant, and consider appropriate mitigating factors. The court was of the view that a mandatory sentence treated the offenders as a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death thereby dehumanizing them.[50]We consider Reyes and Woodson persuasive on the necessity of mitigation before imposing a death sentence for murder. We will add another perspective. Article 28 of the Constitution provides that every person has inherent dignity and the right to have that dignity protected. It is for this court to ensure that all persons enjoy the rights to dignity. Failing to allow a judge discretion to take into consideration the convicts’ mitigating circumstances, the diverse character of the convicts, and the circumstances of the crime, but instead subjecting them to the same (mandatory) sentence thereby treating them as an undifferentiated mass, violates their right to dignity.[51]The dignity of the person is ignored if the death sentence, which is final and irrevocable is imposed without the individual having any chance to mitigate. We say so because we cannot shut our eyes to the distinct possibility of the differing culpability of different murderers. Such differential culpability can be addressed in Kenya by allowing judicial discretion when considering whether or not to impose a death sentence. To our minds a formal equal penalty for unequally wicked crimes and criminals is not in keeping with the tenets of fair trial.[52]We are in agreement and affirm the Court of Appeal decision in Mutiso that whilst the Constitution recognizes the death penalty as being lawful, it does not provide that when a conviction for murder is recorded, only the death sentence shall be imposed. We also agree with the High Court's statement in Joseph Kaberia Kahinga that mitigation does have a place in the trial process with regard to convicted persons pursuant to section 204 of thePenal Code. It is during mitigation, after conviction and before sentencing, that the offender's version of events may be heavy with pathos necessitating the court to consider an aspect that may have been unclear during the trial process calling for pity more than censure or on the converse, impose the death sentence, if mitigation reveals an untold degree of brutality and callousness.[53]If a judge does not have discretion to take into account mitigating circumstances it is possible to overlook some personal history and the circumstances of the offender which may make the sentence wholly disproportionate to the accused's criminal culpability. Further, imposing the death penalty on all individuals convicted of murder, despite the fact that the crime of murder can be committed with varying degrees of gravity and culpability fails to reflect the exceptional nature of the death penalty as a form of punishment. Consequently, failure to individualise the circumstances of an offence or offender may result in the undesirable effect of 'overpunishing' the convict.

13. InS v Mofokeng 1999(1) SACR 502 (W) at 506 (d), Stegmann, J had the following to say: -….. For the legislature to have imposed minimum sentences severely curtailing the discretion of the courts, offends against the fundamental constitutional principles of separation of powers of the legislature and the judiciary. It tends to undermine the independence of the courts and to make them mere cat’s paws for the implementation by the legislature of its own inflexible penal policy that is capable of operating with serious injustice in particular cases.

14. The court inS v Jansen 1999 (2) SACR 368 (C) at 373 (g)-(h), Davis, J stated that: -… mandatory minimum sentences disregard all individual characteristics and each case is treated in a factual vacuum, leaving no room for an examination of the prospect of rehabilitation and of the incarceration method to be adopted. Such a system can result in a gross disregard of the right to dignity of the accused.

15. The High Court (Ogola, J.) in Yusuf Shiunzi v Director of Public Prosecution [2020] eKLR discussed the matter in the manner hereunder: -21. It is not disputed that the opinion of the Supreme Court with respect to mandatory sentences apply with equal force to minimum sentences. This is also supported by the Kenya Judiciary Sentencing Policy Guidelines where it is appreciated that:“Whereas mandatory and minimum sentences reduce sentencing disparities, they however fetter the discretion of courts, sometimes resulting in grave injustice particularly for juvenile offenders.”

22. The approach to be adopted in determining an appropriate sentence where a minimum sentence is prescribed was set out inS v Malgas 2001 (2) SA 1222 SCA 1235 paragraph 25 as follows:"What stands out quite clearly is that the courts are a good deal freer to depart from the prescribed sentences than has been supposed in some of the previously decided cases and that it is they who are to judge whether or not the circumstances of any particular case are such as to justify a departure. However, in doing so, they are to respect, and not merely pay lip service to, the legislature's view that the prescribed periods of imprisonment are to be taken to be ordinarily appropriate when crimes of the specified kind are committed.”

16. Deriving from the foregoing, the court ought not to have been bound by the minimum sentence in section 8(4) of the Sexual Offences Act.

17. The upshot is, therefore, that the sentence imposed, with tremendous respect to the sentencing court, is unconstitutional.

18. As I come to the end of this judgment, I wish to address the issue of the court acquitting the appellant under section 35(1) of the Penal Code on the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, No 3 of 2006.

19. In its judgment, the court found the appellant culpable of the main count of defilement and convicted him. The court then went further and found the appellant again culpable of and convicted him of the alternative count. Therefore, the appellant was found guilty of both defiling the victim and at the same time committing an indecent act with the same victim.

20. In other words, and going by the particulars of the two offences, the appellant ‘…. unlawfully and intentionally caused your penis to penetrate into the vagina of DNC….’ and also ‘…... intentionally and unlawfully caused the contact between your genital organ namely penis and the genital organ namely vagina of DNC …...’

21. The court having found that there was penetration of the penis into the vagina could not again, and on the same facts, find the accused guilty of causing contact between the two organs. In other words, the act of penetration was preceded by the contact. The appellant could, therefore, not be guilty of both the main and alternative counts.

22. It is a well settled principle in law that a court cannot convict on an alternative count if it convicts on the main charge. The reason is simple. The count is just alternative to the main count. It is not an addition to. In fact, the practice is that no finding is made on an alternative count once a court convicts on the main count.

23. In addressing the issue, the Court of Appeal at Nyeri in criminal appeal No 272 of 2012 David Ndumba v Republic [2013] eKLR held as follows: -18. …….. On the issue of the alternative charge we find that nothing turns on the fact that the trial court did not make a pronouncement on the same. InM.B.O v Republic, criminal appeal No 342 of 2008, this court held,The practice of charging offences in the alternative is one of abundant caution and that is why no finding is made on such charge once there is ample evidence to support the main charge.

24. Waweru, J in Patrick Gitonga v Republic [2020] eKLR addressed the issue as follows: -2. The conviction and sentence for the alternative charge are patently illegal and must be set aside. Once a court has convicted on the main count, it cannot also convict on the alternative charge! It is alternative to the main count! That conviction and sentence on the alternative count are hereby set aside for illegality.

25. And, further, the High Court at Lodwar in criminal appeal No 2 of 2018Joseph Ekulan v Republicheld as follows: -14. The charge is alternative to and not addition to and therefore once the trial court had found that the prosecution had proved the main charge of robbery with violence she had no business in proceeding to convict the appellant on the alternative charge…...

26. Respectfully, the trial court erred in finding the appellant guilty of the alternative count.

27. Having so found, and even though the appellant abandoned the appeal on conviction, this court will exercise its supervisory jurisdiction under article 165(6) of the Constitution and ensure that the record of the trial court record is duly rectified.

28. Deriving from the above, the following final orders of this court do hereby issue:a.The sentence of fifteen (15) years’ imprisonment rendered on October 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.The conviction and sentence of the appellant on the alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act be and are hereby set-aside.f.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:Jonny Opicho Wanjala, 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.**