REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI HCCRA NO. E004 OF 2020 KENNEDY NDUNGI MUTUA.................................................APPELLANT VERSUS REPUBLIC ...............................................................................RESPONDENT (Being an appeal from the original judgment of Hon. J. Otieno in Makueni Chief Magistrate’s Court CMCR Case No.17 of 2020 pronounced on 21st September, 2020). JUDGMENT 1. The appellant herein was charged in the magistrates’ court with incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on 5 th September 2016 at around 02:00 am at [Particulars Withheld] Village Mukuyuni Sub-Location Makueni Sub County in Makueni County intentionally and unlawfully caused his penis to penetrate the vagina of JNN (name withheld) a child aged 14 years who was to his knowledge his daughter. 2. 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 which being that on the same day and at the same place intentionally touched the vagina of JNN a child aged 14 years with his penis. 3. He initially denied both charges, and after a full trial, he admitted committing the offence in his defence, and was convicted on the main count of incest contrary to section 20(1) of the Sexual Offences Act and sentenced to life imprisonment. 4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal on the following grounds – 1) That the magistrate erred both in law and fact in convicting him on insufficient evidence. 2) The learned magistrate erred in dismissing his plausible defence without sufficient reasons. 3) The credibility of the complainant’s evidence was questionable and doubtful. 4) The magistrate erred in convicting him on uncorroborated and contradictory evidence. 5. The appeal proceeded through filing written submissions. In the submissions the appellant states that he pleaded guilty and only asked for reduction of sentence. The learned prosecuting counsel Ms. Eunice Gitau for the Director of Public Prosecutions, emphasized the age of the victim in determining the sentence in each case. 6. Section 20(1) on incest by a male person provides as follows – 20(1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt, or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years. Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.” 7. The prosecuting counsel has brought out in the submissions the recent court decision on minimum sentences that in line with the reasoning in the Supreme Court case of Muruatetu –vs- Republic Petition 15 of 2015 – courts have discretion in determining appropriate
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sentences in both mandatory and minimum sentences. 8. That jurisprudence has however been overtaken by events, as on 6 th July 2021 the Supreme Court issued directions that the decision in the Muruatetu case only applied to mandatory death sentences for murder. In particular, under paragraph 14 of the directions, the Supreme Court stated as follows – “14. It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the constitution. It bears restating that it was a decision involving two petitioners who approached the court for specific reliefs. The ultimate determination was confined to the issues presented by the petitioners and as framed by the court”. 9. The mandatory life imprisonment herein imposed on the appellant by the trial court herein was the only lawful sentence and cannot be reviewed by this court. 10. The appellant is a layman. Thus, it is right for me to address the conviction. I note that when put on his defence, the appellant stated as follows – “I am Kennedy Ndungi Mutua. I hail from Kiniu in Mukuyuni. I am a farm hand. On the material date I was at work at Deliverance Church as a security guard. I committed the offence. I leave the court to make its determination.” 11. Thereafter, the trial court went ahead to write and deliver a considered judgment based on the evidence both for the prosecution and the defence, including the Government Analyst’s evidence on the DNA paternity analysis of the child of the victim, in which the paternity of the child was confirmed to be more than 99% a child of the appellant. The child was thus a biological child of the appellant. 12. I find that the conviction was proper, based on the evidence on record of both the prosecution and the appellant. 13. I thus find no merits in the appeal. I dismiss the appeal of the appellant and uphold the sentence. DELIVERED, SIGNED & DATED THIS 8TH DAY OF MARCH, 2022, IN OPEN COURT AT MAKUENI. …………………………………. GEORGE DULU JUDGE
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