RO v Republic (Criminal Appeal 45 of 2020) [2025] KECA 2 (KLR) (10 January 2025) (Judgment)
Neutral citation:
[2025] KECA 2 (KLR)
Republic of Kenya
Criminal Appeal 45 of 2020
HM Okwengu, HA Omondi & JM Ngugi, JJA
January 10, 2025
Between
RO
Appellant
and
Republic
Respondent
(Being an appeal from the Judgment of the High Court of Kenya at Bungoma (Ali-Aroni, J.) dated 21st September 2017 in HCCRA No. 121 of 2015
Criminal Appeal 121 of 2015
)
Judgment
1.The appellant, RO, was tried and convicted before the Chief Magistrate’s Court at Bungoma for the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between 1st June 2014 and 6th June 2014 at [Particulars Witheld] within Busia County, the appellant intentionally and unlawfully, caused his penis to penetrate the vagina of EA (name withheld) a child aged 9 years old. He was sentenced to serve life imprisonment.
2.The appellant, who was aggrieved by the decision of the trial court, filed an appeal before the High Court at Bungoma, against his conviction and sentence. The High Court (Ali-Aroni, J. as she then was) dismissed the appeal and upheld the conviction and sentence in a judgment dated 21st September 2017.
3.The appellant was again dissatisfied with the decision of the High Court and lodged the present appeal. Acting pro se, the appellant has filed an amended petition of appeal in which he has raised five (5) grounds in his self-crafted memorandum of appeal, all of which impugned the sentence imposed against him. The appellant has expressly stated that his appeal is against sentence only.
4.The five grounds of appeal are that, the mandatory life sentence imposed upon him is excessive, harsh and unjust, considering that the appellant was a first offender, and a young man who needed a lesser sentence; that he is remorseful, repentant, reformed and fully rehabilitated, since he has learnt to take responsibility for his actions; that he was arrested at the age of 17 years and prays that he be reconstituted back in the society to serve as a role model; that the Court invokes the provisions of section 333(2) of the Criminal Procedure Code, in the sentence to be awarded; and that the Court do issue any further orders as may be just and expedient in the circumstances.
5.In support of the appeal, the appellant has filed written submissions in which he submits that he was sentenced to a mandatory sentence which infringes his rights under Article 50, and is unconstitutional as it deprived the trial court discretion in sentencing. The appellant further submits that at the time of the commission of the offence, he was still young pursuing his primary education in standard 6 and that his mitigation was not taken into account. He pleads that he be given a second opportunity to progress in his education, and submits that he has undergone rehabilitative programs, is reformed and ready to be re-integrate back into society. He urges the Court in resentencing him, to consider the period already spent in custody.
6.The respondent opposes the appeal through written submissions duly prepared by Ms. Nyambura Mwaniki a Senior Prosecution Counsel in the office of the Director of Public Prosecutions (ODPP). Ms Mwaniki submits that the trial court considered several parameters, including the nature of the offence, the age of the victim of the offence, the age of the appellant and his mitigation; and that the mandatory minimum sentence that was imposed is lawful and constitutional, and the Court should not interfere with it. In support of the submissions Ms. Mwaniki relies on the Supreme Court decision in Republic vs Joshua Gichuki Mwangi & 4 others (Amicus Curiae). She urges that given the dire post traumatic consequences of sexual offences cases, the sentence of life imprisonment that was imposed on the appellant, is not unconstitutional and is, in the circumstances of the case, deserved.
7.During the plenary hearing, the appellant relied on his written submissions, and reiterated his plea that the sentence be reduced. Ms. Mwaniki also opposed the appeal relying on her written submissions maintaining that the sentence is not unconstitutional. However, Ms. Mwaniki pointed out that according to the age assessment of the appellant, his age was between 18 and 20 years, and that given the inconsistent evidence regarding his age, the trial court ought to have inquired further into the matter at the time of trial. Ms. Mwaniki therefore urged the Court to send the matter back to the trial court for resentencing so that the issue of age is further addressed, and the trial court is properly guided on the appropriate sentence to impose.
8.This being a second appeal, the scope of this Court’s mandate is limited to matters of law only, as provided under section 361(1) of the Criminal Procedure Code. As stated in Karingo vs. Republic [1982] KLR 219:
9.Section 361(1) of the Criminal Procedure Code identifies severity of sentence to be a matter of fact. As the appellant in this appeal has questioned only the sentence that was imposed against him, the conviction is not in dispute nor are the concurrent findings of fact arrived at by the two lower courts. On three occasions the appellant lured the minor, whose age was established to be 9 years, into his house and defiled her. The matter came to the fore, when the minor’s mother noticed some suspicious stains on the minor’s panty, and upon interrogating her she revealed what had transpired, identifying the appellant as the culprit. The minor was taken to Kopcholia hospital where she was examined by a clinical officer who noting a foul-smelling discharge from her vagina, an absent hymen, bruised labia and a swollen cervix, concluded that she had been defiled. Consequently, the appellant was arrested and charged with the offence.
10.The issue for determination is whether the appeal before us raises an issue of law regarding the sentence of life imprisonment that was imposed upon the appellant, such as to justify the intervention of this Court. In particular, the underlying question is whether the sentence of life imprisonment that was imposed upon the appellant is harsh, excessive and unconstitutional.
11.The following holding of the Court of Appeal in Bernard Kimani Gacheru vs. Republic (2002) eKLR, is instructive on the issue at hand:
12.The appellant was sentenced to life imprisonment under Section 8 (2) of the Sexual Offences Act. That section provides that:
13.Thus the sentence of life imprisonment that was imposed upon the appellant, is the mandatory sentence provided under Section 8(2) of the Sexual Offences Act. In Republic -vs- Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR), the Supreme Court was categorical that:
14.The Supreme Court, concluded that in the matter before them the sentence that was imposed by the trial court against the appellant and affirmed by the first appellate court “was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid”. The position of the appellant before us is no different from that of the appellant in Republic vs Mwangi (supra). His sentence under section 8(2) of the Sexual Offences Act, must be deemed lawful for the same reason.
15.There is yet another striking similarity between, the appellant before us, and the appellant in Republic vs Mwangi (supra). Just like the appellant before the Supreme Court, in his first appeal before the High Court, the appellant before us did not raise the issue of the unconstitutionality of the mandatory sentence of life imprisonment The matter is, therefore, being raised before this Court for the first time. In this regard the Supreme Court gave the following guidance in Republic vs Mwangi:
16.The appellant not having properly raised the issue of the unconstitutionality of the sentence before the High Court, the issue was not preserved for our determination, and is not, therefore, properly before us in this second appeal. This is another reason why this appeal cannot succeed.
17.Finally, the appellant raised the issue of his age and it was the respondent’s view that this should be looked into. We have carefully considered the record of appeal, and we are satisfied that the trial court properly addressed the issue. The record shows that on 20th June 2014 when the appellant first appeared in court, the trial magistrate directed that his age be assessed. On 23rd June 2014, the appellant appeared in court where the magistrate recorded that she had seen the age assessment report and proceeded to take the appellant’s plea. Clearly the trial magistrate was satisfied that he was not under 18 years hence the plea taking.
18.It is evident that the appellant later raised the issue of his age again, and his mother was asked to avail his birth certificate. The mother later produced a birth certificate which indicated that the appellant was born on 25th May 2000, but when she was interrogated, she said the appellant was born in 1997. This prompted the trial magistrate to order the authenticity of the birth certificate to be investigated, and it was found to be a false document. The appellant was referred to the hospital for a second age assessment. The Court also called for a pre-bail report which confirmed that he was 18 years. In sentencing the appellant, the trial magistrate noted that he was youthful being just over 18 years old.
19.It is, therefore, clear that the trial court addressed the issue of the appellant’s age, and was satisfied that he was just over 18 years old. As the trial court observed, notwithstanding the appellant’s youthful age, the trial court had no option but to impose the mandatory sentence that is prescribed by the law. The sentence was, therefore, neither unlawful nor harsh or excessive.
20.The upshot of the above is that this appeal has no merit. It is accordingly dismissed.
DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JANUARY, 2025HANNAH OKWENGUJUDGE OF APPEALH.A. OMONDIJUDGE OF APPEALJOEL NGUGIJUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR