Paul Ndung’u Mucheke v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MURANG’A CRIMINAL APPEAL NO. 85 OF 2014 PAUL NDUNG’U MUCHEKE.......APPELLANT VERSUS REPUBLIC...................................RESPONDENT [Appeal from the decision of B. Ochieng, Acting Chief Magistrate, in Criminal Case No. 7 of 2012 at Murang’a dated 8 th May 2014] JUDGMENT 1. The appellant was adjudged guilty of attempted defilement of a child contrary to section 9 (1) (2) of the Sexual Offences Act. He was sentenced to 10 years imprisonment. 2. The offence was committed on 3 rd October 2011 at M. village [particulars withheld], Murang’a County. The particulars were that he attempted to penetrate the vagina of BW [particulars withheld], a child aged 15 years. 3. The appeal is contested by the Republic. The case for the State is that the appellant received the minimum sentence. I was implored to dismiss the appeal. 4. This is a first appeal to the High Court. I have re-evaluated all the evidence on record and drawn my own conclusions. Njoroge v Republic [1987] KLR 19, Okeno v Republic [1972] EA 32, Kariuki Karanja v Republic [1986] KLR 190. 5. This appeal only relates to the sentence. The original petition was filed on 29 th May 2014. It challenged both his conviction and sentence. However, on 26th June 2019, the appellant unequivocally abandoned the appeal on conviction. 6. The evidence of PW1’s father established that the victim was a child with special needs having suffered an illness back in class 2. She had difficulties with speech but she could write. So when she complained to PW3 she wrote down the name of the appellant as the person who attempted to defile her. The appellant lived in the same village with the victim. That evidence was corroborated by PW1 and PW2. 7. I drew a further inference of guilt because the appellant went underground for about five months. His defence in the lower court was bogus. I thus find that the conviction was safe. 8. The appellant pleaded for leniency. He said he is remorseful for his actions. He said he has been in jail since 2014; and, that he has reformed. In a synopsis, the entire appeal is a plea for mercy. 9. Section 354 (3) of Criminal Procedure Code empowers this court to review the sentence. In Macharia v Republic [2003] 2 E.A 559 the Court of Appeal held- “The Court would not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it would not ordinarily interfere with that discretion exercised by a trial judge, unless it was evident that the judge acted upon some wrong principles or overlooked some material factors.” 10. The learned trial magistrate considered that the appellant was a first offender. The appellant in mitigation said: “I plead for leniency; I have been in remand for the past 3 years”. I cannot say the learned trial magistrate applied wrong principles or overlooked some material factors. 11. Despite the fresh clamour for leniency, this was a serious felony. Section 9 (2) of the Act provides for a minimum sentence of ten years.

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