REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT CHUKA HCCRA. NO. E002 OF 2021 KMG...............................................................................APPELLANT -VERSUSREPUBLIC................................................................ RESPONDENT JUDGMENT Background facts 1. The Appellant was charged in Marimanti Criminal Case No. 33 of 2010 with the offence of incest contrary to Section 20(1) of the Sexual Offences Act No.3 of 2006. 2. The particulars of the offence were that on the 7 th day of August 2020 at [Particulars Withheld] Village, Kamatungu sub-location within Tharaka Nithi County, the Appellant being a male person intentionally caused his penis to penetrate the vagina of PN, a female child aged nine (9) years who was to his knowledge his granddaughter. 3. The Appellant faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No.3 of 2006. He pleaded not guilty to both charges and after full trial, the Appellant was found guilty and sentenced to serve life imprisonment. The Appeal 4. As per the grounds of appeal filed in this court on 4th March, the Appellant has based this appeal on the following grounds: i. THAT the appeal is against sentence only. ii. THAT the learned trial magistrate still erred in both matters of laws and facts by imposing a harsh and excessive sentence upon the Appellant without taking into consideration the Appellant’s mitigation factors. iii. THAT the honourable sentencing court erred in laws and facts by failing to take into account the Appellant’s dignity. iv. THAT the learned trial magistrate still erred in both matters of laws and facts by imposing a harsh sentence without taking into consideration that the purpose of a sentence of imprisonment is not only for torment. v. THAT the learned trial magistrate still erred in both matters of laws and facts by imposing a harsh sentence without considering that the Appellant was qualified for the benefit of the law as enshrined under Article 50(2)(p) of the Constitution. vi. Spent. 5. It is evident from the above grounds of appeal that while the Petition of Appeal is expressed to be against the original conviction and sentencing of the trial court, the Appellant has only made a case against the sentence only. 6. The Appellant thus prays for the appeal to be allowed by setting aside the imposed sentence of life imprisonment and substituting it with a definite sentence. Issue for determination 7. In my view, the only issue for determination in this judgment is whether the appeal is merited.
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Analysis 8. As noted above, this appeal is only against the sentence. However, this being a first appeal, it is the duty of this court to re-consider and reevaluate the evidence adduced before the trial court and come up with its own conclusion [See: Okeno –vs- Republic (1972) EA 32]. 9. PW1 was the complainant herein. She is the Appellant’s granddaughter was nine (9) years old on the incident date. She testified that the offence took place sometime in 2020 in the house of the Appellant. Her mother had gone to the farm to herd. According to PW1, the Appellant grabbed her from behind their house where she was playing with her siblings, M and M. The Appellant then defiled PW1. 10. The subject incident was witnessed by PW2, the brother to PW1 who was aged fourteen (14) years’ old at the time. He testified that on the material day, he found the Appellant and PW1 having sex. The Appellant noticed him and sent him away to go fetch firewood. On returning, he did not find PW1. PW2 then informed their mother about the incident the following day. It was then that the matter was reported to the area sub-chief and the Appellant was subsequently arrested. 11. PW3 was MK, the mother to PW1 and PW2. She testified that on 7 th August 2020, she was herding when PW2 went and informed her that he had seen the Appellant and PW1 having sex. She produced in evidence PW1’s birth certificate Serial No. xxxxx which showed that PW1 was born on 13th February 2011. On cross examination by the Appellant, it was PW3’s evidence that she usually leaves her children with the Appellant when she goes in search for work. 12. PW4 was Makungi Peter Muriuki, the area sub-chief of Kamatungu. He recalled receiving a call from the area manager on the morning of 9th August 2020 regarding this case. He responded by going to the scene, accompanied by Nyumba Kumi elders. He found PW3 with her four (4) children and on enquiry on what and transpired, PW2 narrated that he had seen the Appellant and PW1 having sex. The Appellant was then arrested and handed to the police. 13. PW5 was Lilian Wahu, a clinical officer at Marimanti Level 4 Hospital. She examined PW1 48 hours after the incident and produced in evidence her P3 form which she filled. According to her, PW1 was brought into the hospital by her mother over alleged defilement by the grandfather. On examining her, she found that PW1’s hymen was broken but not freshly. She also noted that PW1 had knowledge of condoms and matters sex. 14. PW6 was P.C. David Mtua Ngiti, the investigating officer in this case. It was his testimony that PW1 went to Marimanti Police Station on 9th August 2020 accompanied by her mother and the area assistant chief. They reported a case of defilement by PW1’s grandfather, the Appellant herein. PW6 then visited the scene and collected exhibits which included one (1) used condom, wrapped condoms, a packet of Trust condoms and photos of the scene. 15. When put to his defence, the Appellant denied having sex with PW1 at any given time. It was his contention that the charges were framed up by her daughter (PW3) in a plot to sell their land. He further claimed PW3 lives with the brother to the area sub-chief (PW4) and that the two had previously framed the Appellant with selling illicit brew. 16. Considering the circumstances of this case, the trial court identified the ingredients of the subject offence which include age of the victim; relationship of the victim and the defiler; penetration/indecent act; identification of the suspect; and whether there was any plausible defence. 17. Accordingly, the trial court found that PW1 was a minor aged 9 years old, and the Appellant was PW1’s biological grandfather. The Appellant was positively identified as they lived together with PW1, PW2, and PW3. The trial court also found that the evidence of PW1, PW2, PW3 and PW5 were well corroborated and pointed to the fact that the Appellant had sex with PW1, which is sufficient proof of penetration. Considering the evidence adduced before the trial court in totality, it is my view that the same pointed to the guilt of the Appellant and the trial court was correct to find so. 18. Having found that the conviction was safe, I now turn to the issue of sentence. The Court of Appeal sitting at Nyeri in the case of Francis Nkunja Tharamba v Republic [2012] eKLR held as follows with regards to sentencing: “…sentencing is a discretionary act of the trial court even though the limits such as the maximum sentences and in some cases the minimum sentences are prescribed by law, nonetheless, as to the exact sentence to be pronounced upon a convicted person, the trial court has in most criminal cases, the discretion to decide. That being the case, in law, the appellate court should not intervene in such an exercise of discretion by an inferior court unless, it is demonstrated to it that the trial court has not exercised that discretion properly in that it has failed to consider matters it should have considered or that it has considered matters it should not have considered or that looking at the entire decision, it is plainly wrong. These are the situations in law where the appellate court can intervene in the trial court’s exercise of discretionary power such as that of sentencing. The next principle that the appellate court should adhere to when considering an appeal on sentence is that when the sentence is lawful, the appellate court should not interfere.” 19. The offence of incest is stated in Section 20(1) of the sexual Offences Act as follows: “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 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.”
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20. From the above provision, it is clear that the sentence for incest is predicated upon the age of the complainant. If the complainant is an adult, that is over eighteen years old, the court has discretion to mete a sentence of imprisonment of any length not being less than ten years. If the complainant is under eighteen years of age the court has discretion to mete a sentence of up to life imprisonment. 21. The Court of Appeal had the opportunity to interpret Section 20(1) of the Sexual Offences Act in the case of M. K- Vs – Republic (Nbi) Criminal Appeal No. 248 of 2014 (C.A)(2015) eKlr. The court stated as follows:- “17. In the instant case, the appellant was charged with an offence under Section 20(1) of the Sexual Offences Act. This Section provides for a minimum term of 10 years imprisonment. However, the proviso to Section 20(1) stipulates that if the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life. The learned Judge of the High Court interpreted this proviso to mean that a mandatory minimum sentence for life is provided for in the proviso if the female victim is under the age of eighteen years. The legal question for our consideration and determination is whether this interpretation is correct; does the proviso provide for a minimum term of life imprisonment”. 18. The first observation to note is that the phrase “not less than” has not been used in the proviso to Section 20(1) of the Sexual Offences Act. The inference is that the proviso does not create a minimum sentence. The phraseology and wording in the proviso is that the accused shall be liable to imprisonment for life. 19. What does “shall be liable” mean in law”. The court of Appeal for East Africa in the case of OPOYA – V – UGANDA( 1967) EA 752 had an opportunity to clarify and explain the words “shall be liable on conviction to suffer death”. The court held that in construction of penal laws, the words “shall be liable on conviction to suffer death” provide a maximum sentence only; and the courts have discretion to impose sentences of death or imprisonment.” 22. In the Opoya case (supra), the court went on to interpret the phrase “shall be liable to” as used in penal statutes by stating that: “It seems to us beyond argument the words “shall be liable to” do not in their ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words they are not mandatory but provide a maximum sentence only and while the liability existed the court might not see fit to impose it.” 23. From the above interpretation of the phrase “shall be liable”, it can be construed that the life imprisonment sentence under Section 20(1) of the Sexual Offences Act is not mandatory. It is also not the minimum sentence that can be imposed. What this means is that the accused can be sentenced to a period between 10 years up to life imprisonment when the victim is below 18 years old. 24. It is trite that crime should be punished in the interest of justice. However, an excessive punishment serves neither the interests of justice nor those of the society. This court is therefore called upon to determine whether the trial court acted on the correct principles of law in meting out the life imprisonment sentence. 25. The prosecution called a total of six (6) witnesses in support of its case. It was established that the Appellant is the blood grandfather of the complainant (PW1), and that the complainant was around nine (9) years old at the time of the alleged incident. Given that the complainant was under eighteen 18 years of age, it follows that the life imprisonment imposed was lawful as it was well within the scope of proper sentence for the offence of incest. The question that then begs determination is whether the said sentence was harsh or excessive in the circumstances. 26. I note that in his mitigation, the Appellant submitted that he was framed and that he pays school fees for the children. When the matter came up for sentencing, the trial court expressed that it had considered the Appellant’s mitigation and the pre-sentencing report. The court then proceeded to state as follows: “I note accused is old but he committed a very heinous act. I note the victim and community is mad with him. I think this man needs a long sentence in prison to serve as an example to other would be defilers of their own. It is quite serious for a minder of a child to turn into his/her “predator” total sadness.” 27. The Judiciary’s Sentencing Policy Guidelines has set out factors to be considered in sentencing elderly offenders by providing that:- “20.28 When imposing sentencing orders against terminally ill and elderly offenders, a court should be mindful to ensure that the sentence imposed does not amount to an excessive punishment in view of the extent of illness and age as well as in light of the offence committed. In particular, the court should ensure that the sentence imposed does not amount to cruel, inhuman or degrading treatment in view of the extent of illness and age of the offender. 20.29 Non-custodial sentences should be considered unless, in light of the offence committed and other factors, justice would demand the imposition of a custodial sentence.” 28. I have considered the Appellant’s advanced age. He was around 70 years old on the incident date. I have also considered the nature of the offence I have also considered the fact that the Appellant lives with victim and the complainant’s testimony that the Appellant has defiled her several times before. In my view, this court cannot overlook the fact that the Appellant has committed a heinous crime and occasioned trauma and suffering to a young girl who is his own blood. His actions clearly demonstrate that the young and vulnerable that are around him could be in jeopardy. As such, it is my view that he should not benefit from a non-custodial sentence.
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29. The principles upon which an appellate Court will act in exercising its discretion to review or alter a sentence imposed by the trial court were settled in the case of Ogolla s/o Owuor vs R, (1954) EACA 270 wherein the Court of Appeal stated as follows: "The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors”. To this, we would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case (R - v- Shershowsky (1912) CCA 28TLR 263)." 30. In the case of Wanjema v. R [1971] E.A. 493, 494, the court held that the appellate court is entitled to interfere with the sentencing discretion of the trial court in view of plain error of omnibus sentence and the illegality of the sentence. Therefore, in view of the above analysis, it is my view that the trial court considered the correct principles in imposing the maximum sentence of life imprisonment. I thus opine that this court should not interfere with sentence meted by the trial court. Conclusion 31. The upshot of the foregoing is that the appeal on sentence imposed fails. I therefore dismiss the appeal. DATED, SIGNED AND DELIVERED AT CHUKA THIS 7TH DAY OF FEBRUARY 2022. L.W. GITARI JUDGE 7/2/2022 The Judgment has been read out in open court. L.W. GITARI JUDGE 7/2/2022
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