Mohamed v Republic

that the victim was born on April 8, 2008 and his birth certicate that was tendered as an exhibit. PW3 MA, was a cousin to the victim and a neighbor to the appellant. Her evidence was that on the material morning she saw the appellant holding the victim by the hand and escorting him from his house, that when they neared the victim’s home, the appellant released the victim and told him to go home. PW3 testied that the victim was crying and when she called him to nd out what had happened but he continued walking home. 3. PW4 PC Felix Kibet Kosgei was based at Shimo Police station at the time. He said that he was informed of a complaint of delement. He testied that he conducted investigations, visited the scene and recovered the victim’s shorts. PW5 was the child victim. He testied that on the material day the appellant called him to his home where he penetrated his anus. PW5 was examined on June 16, 2013 by PW6 Dr. Philip Kibet Chebii who lled a P3 form and examined of PW5. He testied that his examination revealed that the victim had anal abrasion, bleeding in the anus and watery faeces which was proof of delement. 4. The appellant in his defence denied committing the oence and maintained that the case was fabricated because of a long- standing dispute between his father and PW5’s father. 5. The learned trial Magistrate was satised PW5 was a truthful witness. He found that PW5’s evidence was corroborated by that of PW1 and PW3 and further that the medical evidence corroborated the evidence of PW5 that he had been penetrated through his anus. The court was satised that that PW5 was born on 8th April 2008 as evidenced by the immunization card. The court disbelieved the appellant’s defence, found him guilty of the main count and convicted him. After considering mitigation, he was sentenced to 30 years imprisonment. 6. The appellant was dissatised with the decision of the learned trial magistrate and appealed to the High Court at Mombasa. The grounds of appeal were that the prosecution did not prove its case; that he was denied a fair hearing; that Section 36 of the Sexual Offences Act as well as section 19 of the Oaths and Statutory Declarations Act was not complied with and his defence was not considered. The Learned Judge of the High Court, A. Ongeri, J. vide judgment rendered on 3rd August 2016 noted that the appellant abandoned his grounds of appeal and gave mitigation on sentence instead. She found no reason to fault the learned Magistrate judgment as there was overwhelming evidence in support of the prosecution case. It was found that the appellant was accorded a lenient sentence for an oence that attracts a life sentence. The appeal was dismissed for want of merit; and the appellant’s conviction and sentence were armed. 7. The appellant was dissatised with the decision and led his appeal to this court. The appellant led supplementary grounds of appeal and also written submissions dated July 1, 2022. He raises four grounds all touching on sentence, that the rst appellate court erred by failing to nd that sentence of 30 years was manifestly harsh and excessive; for failing to consider that he was a rst oender; failing to consider the Judiciary Sentencing Policy Guidelines and section 4 (1) & (2) of the Probation of Offenders Act; and failed to consider the period he had spent in remand. He relied on this court’s decision in Eliud Waweru Wambui vs. Rep. 2019 eKLR for the proposition that the SOA needs a serious re-examination in a sober pragmatic manner for criminalizing sexual acts with children above 16 years. He also relied on section 4 (1) & (2) of the Probation of Offenders Act for proposition that a non-custodial sentence should be consider for certain persons on account of certain circumstances. 8. Mr. Jami Yamina, Senior Principle Prosecution Counsel led written submissions dated May 20, 2022. While relying on section 361 of the Criminal Procedure Code, learned prosecution counsel urged that this being a second appeal, the court could only consider points of law only. Mr. Jami submitted that the grounds raised by the appellant in his appeal were on sentence which were points of fact. He https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1266/eng@2022-11-18 2

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urged that the only instance that a second appeal court could interfere with sentence is when reducing severe sentence, which was not the case here. Learned prosecution counsel urged that the appeal is incompetent. The court was reminded that the appellant abandoned his grounds of appeal and that this court could not tamper with the conviction. To counsel, what remained was a declaration of a mistrial so that the appeal be reheard however there were no grounds for rehearing the appeal. It was concluded that the 30-year sentence was irregular in view of the provisions of section 8(2) of the Sexual Offences Act. The court was urged to dismiss the appeal. 9. We have considered this appeal, the grounds of appeal raised by the appellant, together with the submissions by both the appellant and the State. This is a second appeal, the appellant having been heard by the High Court sitting as a rst appellate court. This being a second appeal, under section 361(1) of the Criminal Procedure Code, our jurisdiction is limited to matters of law. As stated by the court in Karani v Republic [2010] 1 KLR 73: “ By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the rst appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole they were plainly wrong in their decision, in which case such omission or commission would be treated as a matters of law.” 10. As we set out earlier in this judgment, the appellant raised four grounds all of which touched on sentence. Section 361(1)(a) of the Criminal Procedure Code provides that “severity of sentence is a matter of fact”. The only instance when a second appellate court can consider an appeal on sentence is where the sentence is illegal, or one that cannot be justied given a consideration of the personal circumstances of the oender, for instance the age or such other special circumstances. In this case the appellant was an adult. In his mitigation the appellant stated that he was sorry, that his family was suering at home, and that his parents depended on him. There was nothing in mitigation or the case to suggest that there were any special or unique circumstances that could have warranted an interference with the sentence. The law and the case that the appellant cited do not aid the appellant’s case. He deled a child of ve years. The SOA prescribes life imprisonment for the oence, but his sentence was reduced to 30 years. 11. Having considered the appeal we nd it has no merit, as it raises issue with the sentence, which we nd we have no reason to interfere with it. The result is that this appeal is dismissed. Those are our orders. DATED AND DELIVERED AT MOMBASA THIS 18TH DAY OF NOVEMBER 2022. S. GATEMBU KAIRU (FCI Arb) ................................................. JUDGE OF APPEAL P. NYAMWEYA ................................................. JUDGE OF APPEAL J. LESIIT ................................................. JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1266/eng@2022-11-18 3

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I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1266/eng@2022-11-18 4

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