Levis Juma Nyongesa v Republic

a. That he is a first offender. b. That the sentence of 15 years as meted out upon him is rather too harsh and excessive as per the circumstances. c. That he is a family man with siblings who rely on him as a daily bread winner, d. That this Court be pleased to consider reducing the sentence imposed on humanitarian grounds. e. That this Court makes a declaration that the tie he spent in remand awaiting trial be considered. f. That he wishes to adduce more grounds at the hearing thereof. 6. He prayed that this Court allows his appeal in its entirety. 7. The appeal was canvassed by way of written submissions. The record only bears the Appellant’s written submissions while the Respondent submitted orally. The only issue for consideration is whether the sentence meted upon the appellant was harsh. 8. The duty of a first appellate Court is to re-evaluate and re-assess the evidence afresh and draw its own conclusions while taking into account the fact that unlike the trial Court, it neither saw nor heard the witnesses testify. See Okeno v R. (1972) E.A. 32. 9. Given that the appeal is against the sentence, I will not set out the evidence of the parties. Whether the sentence meted out of the Appellant was harsh and excessive 10. The Appellant has impugned the judgment of the trial Court in imposing a sentence of 15 years’ imprisonment. As stated above, the Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act. The section provides that: “ (1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. 11. On my perusal of the lower Court proceedings, on 21st November 2023, the trial Court proceeded to sentence the Appellant to Fifteen (15) years imprisonment. It is thus clear that the Appellant was given a chance to mitigate hence it cannot be said that his right to mitigation was violated and the Court took cognizance of the pre-sentence report. 12. It has been stated time and again that sentencing is a discretionary exercise by the trial Court, and that an Appellate Court will not necessarily interfere with the sentence meted out, unless it is demonstrated that the trial Court acted on some wrong principles or overlooked some material facts. For instance, in Bernard Kimani Gacheru vs. Republic (2002) eKLR; the Court of Appeal stated: “ It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with a sentence unless that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11962/eng@2025-06-30 2

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and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless anyone of the matters already stated is shown to exist.” 13. The issue before me is not a novel issue. The Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) addressing minimum sentences prescribed by section 8 of the Sexual Offences Act had this to say: “ 66. We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in the Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.” 14. The upshot of the above is that this appeal fails as the Court finds no justification for interference with the sentence that was imposed upon the Appellant by the trial court. 15. In the result, the appeal is devoid of any merit. It is dismissed. Orders accordingly. DATED AND DELIVERED AT BUNGOMA THIS 30TH DAY OF JUNE 2025. M.S.SHARIFF JUDGE In the presence of: Ms Kibet for the Respondent Appellant (virtually) Peter Machoni – Court assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11962/eng@2025-06-30 3

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