Kangethe v Republic (Criminal Appeal 14 of 2019) [2022] KECA 756 (KLR) (24 June 2022) (Judgment) Neutral citation: [2022] KECA 756 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI CRIMINAL APPEAL 14 OF 2019 MSA MAKHANDIA, S OLE KANTAI & KI LAIBUTA, JJA JUNE 24, 2022 BETWEEN PATRICK MWANGI KANGETHE ....................................................... APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (An appeal from the Judgment of the High Court of Kenya at Kiambu (L.N. Mutende, J.) dated 15th June, 2017 in HC. CR.A. No. 157 of 2016) JUDGMENT 1. The appellant, Patrick Mwangi Kangethe, was convicted on the main charge of delement contrary to Section 8(1) (2) of the Sexual Offences Act No. 3 of 2006, the trial court nding that the prosecution had proved beyond reasonable doubt that he had, on 19th January 2014, at a place in Kiambu County, caused his penis to penetrate the vagina of SWW, a child aged 10 years. He was fortunate to be sentenced to 30 years imprisonment in the Judgment delivered on 17th May, 2016. We say so because the prescribed sentence for the oence he faced under the said Act was life imprisonment, but that issue is not alive before us. He led an appeal to the High Court of Kenya at Kiambu but that appeal was dismissed in a Judgment delivered on 15th June, 2017 (Mutende, J.), the court nding it lacking in merits. 2. In the homemade “Mitigation of Appeal” to this Court led on 14th November 2017, the appellant requests that we reduce the sentence; that he was reformed and would not commit another oence promising to be a good citizen going forward; and that he is an orphan who has attained certain grades while training in prison. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/756/eng@2022-06-24 1
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3. Our mandate on a second appeal like this one is donated by Section 361 (1) (a) of the Criminal Procedure Code which provides: 361 (1) A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section— a. 4. on a matter of fact, and severity of sentence is a matter of fact.” The jurisdiction of this Court on a second appeal as is the case here has received judicial pronouncements in various cases such as the case of Stephen M'Irungi & Another v Republic [1982-88] 1 KAR 360, where it was held: Where a right of appeal is conned to questions of law only, an appellate court has loyalty to accept the ndings of fact of the lower court(s) and resist the temptation to treat ndings of fact as holdings of law or mixed nding of fact and law, and, it should not interfere with the decisions of the trial or rst appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law." 5. As we have stated, the appellant faced a charge for an oence where upon conviction, he should have been sentenced to life imprisonment. He was instead given a custodial sentence of 30 years. We agree with the impugned judgment of the High Court and nd no merit in this appeal, which we hereby dismiss. DATED AND DELIVERED AT NAIROBI THIS 24TH DAY OF JUNE, 2022. ASIKE-MAKHANDIA ................................ JUDGE OF APPEAL S. ole KANTAI ................................ JUDGE OF APPEAL Dr. K.I. LAIBUTA ................................ JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/756/eng@2022-06-24 2
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