REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL DIVISION CRIMINAL APPEAL NO.151 OF 2016 (An Appeal arising out of the conviction and sentence of Hon. T. Okello – SPM delivered on 29th October 2012 in Makadara CMC. CR. Case No.523 of 2010) KATHUKU NZULWA..........................APPELLANT VERSUS REPUBLIC.......................................RESPONDENT JUDGMENT The Appellant, Kathuku Nzulwa, was charged with defilement of a child contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the offence are that on the 1 st day of February 2010 at 2300hours [particulars withheld] within Nairobi County, the Appellant intentionally and unlawfully committed an act which caused the penetration of his male genital organ, namely penis, into the female genital organ namely vagina of P At, a child aged 13 years. In the alternative, he 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 are that on the 1 st day of February 2010 at 2300hours [particulars withheld] within Nairobi County, the Appellant intentionally and unlawfully touched the vagina of P A, a child aged 13 years. When the Appellant was arraigned before the trial magistrates’ court, he pleaded not guilty to the charge. After full trial, he was convicted of the main charge of defilement and was sentenced to serve fifteen (15) years imprisonment. The Appellant was aggrieved by his sentence and has filed an appeal to this court. In his petition of appeal, the Appellant raised several grounds of appeal challenging his sentence. He stated that he was a first offender and had learnt his lesson during the period that he has been in prison. He stated that he had reformed and had learnt trades which will enable him to be a useful member of the society if he is released. He urged the court to take into consideration that he was a youth who should be given a chance to engage in productive economic activities to take care of those who depend on him. He stated that he was the sole breadwinner of his family, especially his mother who was sickly and unemployed. He urged the court to consider reduction of custodial sentence that was imposed on him. During the hearing of the appeal, the Appellant appeared in person while Ms. Sigei appeared for the State. The Appellant presented his written submissions to the court for consideration. He was pleading with the court to exercise leniency on him by reducing the sentence that was imposed on him. In his submission, he stated that he was a first time offender and that he had learnt his lesson during the period of his incarceration. He stated that he had reformed and had acquired several skills which would enable him to be a useful member of the society if released. He told the court that he was the sole bread winner of his family as his mother was single, jobless and had health problems. He pleaded with the court to exercise leniency on him and reduce the sentence that was imposed on him. Ms. Sigei for the State opposed the plea for reduction of sentence. She submitted that the sentence passed upon the Appellant was illegal. This, she stated, was because the complainant was fourteen (14) years at the time of the incident and thus the trial court ought to have sentenced the Appellant under Section 8(3) and not 8(4) of the Sexual Offences Act. She was of the view that taking into account the circumstances
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of the case, the sentence meted by the trial court was illegal and should be enhanced. 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 the society. On the other hand, the State urged the court to enhance the statement that was imposed by the trial court because it was illegal and was inappropriate to the crime that was committed by the Appellant. This court has carefully considered the plea for reduction of sentence by the Appellant. It has also reevaluated the facts of the case. The Appellant was convicted for defilement of a child contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. This was so because there was no proof of age of the complainant and the court was convinced that the accused had indeed defiled the complainant. Under that section, a person convicted of committing such offence is liable to “imprisonment for a term of not less than fifteen years”. In the present appeal, the Appellant was sentenced to serve fifteen (15) years imprisonment. It was the minimum sentence provided by the law. The sentence was legal. The prosecution did not file and serve a notice of enhancement of sentence upon the Appellant. The prosecution’s plea for the court to enhance the sentence is therefore without merit. Taking into account the offence that the Appellant committed, this court is of the considered view that the sentence that was imposed on the Appellant fitted the crime. It was legal. In the premises therefore, the Appellant’s appeal lacks merit and is hereby dismissed. He shall serve the sentence imposed by the trial court. It is so ordered. DATED AT NAIROBI THIS 18TH DAY OF JULY 2017 L. KIMARU JUDGE
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