Criminal Division v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL DIVISION CRIMINAL APPEAL NO.531 OF 2010 (An Appeal arising out of the conviction and sentence of L. GICHEHA - PM delivered on 10th October 2011 in Thika CM. CR. Case No.1864 of 2009) KYALO MBITI………………..……………………………….APPELLANT VERSUS REPUBLIC……………………………………….……........RESPONDENT JUDGMENT The Appellant, Kyalo Mbiti was charged with defilement contrary to Section 8(1) & (2) of the Sexual Offences Act. The particulars of the offence were that on 9 th April 2009 at [particulars withheld] Village in Muranga South District, the Appellant unlawfully and intentionally committed an act which caused penetration with S N N’s genital organs, a child aged eleven (11) years. In the alternative, the Appellant was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the offence were that on the same day and in the same place, the Appellant committed an indecent act on S N N, a child aged eleven (11) years by touching her private parts. When the Appellant was arraigned before the trial magistrate’s court, he pleaded not guilty to the charge. After full trial, the Appellant was convicted on the main count of defilement. He was sentenced to serve fifteen (15) years imprisonment. Although the Appellant filed an appeal challenging his conviction and sentence, during the hearing of the appeal, he abandoned his appeal on conviction. However, he pleaded with the court for a reduction of sentence. He told the court that he was a sole bread winner for his family. His father had died in 1974. He was taking care of his elderly mother together with his wife and children. He stated that he had been in prison since 2010. He had suffered. He had reformed and was ready to rejoin the society. He had learnt his lesson. He was no longer a danger to the society. He urged the court to take into consideration that he was a first offender. He was remorseful for the offence that he had committed. Ms. Ndombi for the State opposed the plea by the Appellant for reduction of sentence. She submitted that the State had served the Appellant with a notice of enhancement of sentence. She submitted that the sentence that was imposed on the Appellant was illegal. She urged the court to regularize the same by enhancing the sentence. Otherwise, she was of the view that the appeal lacked merit and should be dismissed. The Appellant is not challenging his conviction. He is appealing against sentence. When the trial court sentenced the Appellant to serve the custodial sentence, it was exercising judicial discretion. As an appellate court, this court will only interfere with such exercise of judicial discretion if it is established that the sentence was manifestly harsh and excessive or was so lenient as to amount to a miscarriage of justice. This court will interfere with the sentence if it is established that the sentence was unlawful. In the present appeal, the Appellant urged the court to interfere with the custodial sentence that was imposed on him by the trial court. He pleaded with the court to exercise leniency on him. He told the court that he had learnt his lesson and should be allowed to be integrated back to society. On the other hand, the State urged the court to set aside the sentence that was imposed by the trial court because it was of the view that the sentence that was imposed by the trial court did not accord with the law. Having carefully re-evaluated the facts of the case, this court is of the view that the Appellant’s appeal on

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