MM v Republic (Criminal Appeal 41 of 2017) [2023] KECA 809 (KLR) (7 July 2023) (Judgment)
Neutral citation:
[2023] KECA 809 (KLR)
Republic of Kenya
Criminal Appeal 41 of 2017
MSA Makhandia, S ole Kantai & PM Gachoka, JJA
July 7, 2023
Between
MM
Appellant
and
Republic
Respondent
(An appeal from judgment of the High Court of Kenya (B. Jaden, J.) dated 16th July 2014 in Machakos HCCRA No. 36 OF 2013)
Judgment
1.This appeal is from the judgment of Jaden, J. delivered on July 16, 2014, in which the learned Judge upheld the judgment of the trial court which had convicted the appellant for the offence of incest contrary to section 20(1) of the Sexual Offences Act and sentenced him to 21 years imprisonment.
2.The particulars of the offence were that on June 16, 2010, in Mwingi District within Eastern Province the appellant being a male person caused his penis to penetrate the vagina of NM a female person who was to his knowledge a daughter. The appellant was arraigned in court and pleaded not guilty and the case proceeded to a full hearing. The prosecution called five witnesses to prove their case against the appellant.
3.An abridged version of their evidence was as follows: PW1 JM, and PW2 MMM, sister and mother to NM respectively, testified that on the 16th June 2010, at 2.00 am, NM a girl aged about three years, and the other members of the family including their father who is the appellant were at home sleeping. They were woken up by cries from NM whereupon PW2 lit a torch. They saw the appellant who had lowered his trousers up to the knees defiling NM. When confronted over the incident by PW2, the appellant just kept quiet. In the morning he left the house at about 5.00 a.m. Later in the day, PW2 reported the incident to the assistant chief who referred her to Kyuso Police Station where she made a report. NM was thereafter referred to Kyuso District Hospital. She was examined by the Clinical Officer, PW4 Muema Mutunga who confirmed that NM was 2 years and 7 months old and that she had been defiled since the hymen was broken and there was swelling of the vulva. The evidence of PW3, APC David Thiyaini and that of PW5, PC Njoki was to the effect that a report was made to their police station regarding the incident. Thereafter, the appellant was arrested and after investigations, was charged with the offence.
4.When called upon to defend himself, the appellant denied the offence and stated that NM was his own child and therefore he could not have done such a thing. He further stated that NM was examined after a long time, which compromised the evidence. He further stated that he had disagreed with his wife, PW2 over some money. That in July 2010, two village elders went to where he was working and escorted him to the chief’s office where he stayed overnight and the following day he was escorted to Kyuso Police Station where he was charged with an offence that he had not committed. According to the appellant, PW2 maliciously had him charged so that she could get him out of the picture and return to her “friend”.
5.As already stated, the High Court having evaluated the evidence on record afresh and considered the grounds of appeal and the submissions, upheld the conviction and sentence.
6.The appellant being aggrieved by the decision of the High Court has now lodged a second and perhaps last appeal in this court. In his undated memorandum of appeal, the appellant complains in the main that the learned Judge of the High Court erred in law by: relying on a fatally defective charge sheet contrary to section 214 of the Criminal Procedure Code; shifting the burden of proof to him; failing to observe that the crucial witnesses were not summoned to testify; and lastly, relying on contradictory and inconsistent evidence to uphold his conviction.
7.At the virtual hearing of the appeal, the appellant appeared in person whereas Ms. Vitsengwa, learned prosecution counsel appeared for the respondent. Before the formal hearing commenced, the appellant informed us that he was abandoning the appeal on conviction. However, he wished to prosecute the appeal limited to sentence only. Ms. Vitsengwa not objecting to the request, we duly marked the appeal on conviction as abandoned.
8.In support of his appeal on sentence, the appellant submitted that the sentence imposed ought to run from the day he was arrested and not from the date of conviction. That he was never on bond or bail from the date of his arrest to the date of conviction and sentence.
9.On her part, Ms. Vitsengwa was of the opinion that the appellant was praying for orders that are normally granted by the High Court under section 332 of the Criminal Procedure Code where the court computes the sentence from the date when an accused was held in custody. That such orders are best granted by the High Court and thus the appellant ought to make the necessary application in that court.
10.Sentencing of an accused person involves the exercise of discretion by the trial court. That discretion must of course be exercised judiciously rather than capriciously, depending on the circumstances of each case. As what is challenged in this appeal is essentially the exercise of discretion by the trial court, this court is normally slow to interfere with that exercise unless it is demonstrated that the trial court acted on the wrong principle; ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive. In Bernard Kimani Gacheru v Republic, Criminal Appeal No. 188 of 2000 (Nakuru) this court stated:This appeal does not question the sentence imposed in any way, as such the sentence is lawful. However, the appellant argues that the period he was in custody was not considered. From the judgment of the trial court, the record shows that the trial court sentenced the appellant to 21 years but did not state when the sentence was to start running.
11.This Court of Appeal in the case of; Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR stated that:
12.The respondent has argued that the orders sought are a reserve of the High Court under section 322 of the Criminal Procedure Code and that the appellant should make the necessary application to that effect. Given the above authorities, we doubt whether this submission is correct.
13.From the record, the appellant was arrested on July 27, 2010 and was thereafter convicted and sentenced on April 20, 2011 to serve 21 years imprisonment. He is asking us to determine that the time of his sentence should start to run from April 27, 2010 when he was arrested. We do not see any difficulty in making such an order based on the authorities cited above.
14.We are satisfied that the trial court did not take into account the period the appellant was held in custody. We therefore order that the sentence imposed of twenty-one (21) years should run from the date the appellant was arraigned in court onApril 27, 2010.
15.It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF JULY, 2023.ASIKE-MAKHANDIA……………………………JUDGE OF APPEALS. OLE KANTAI……………………………JUDGE OF APPEALM. GACHOKA CIArb., FCIArb.……………………………JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR