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IWW v Republic (Criminal Appeal E001 of 2022) [2022] KEHC 15090 (KLR) (9 November 2022) (Judgment)

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IWW v Republic (Criminal Appeal E001 of 2022) [2022] KEHC 15090 (KLR) (9 November 2022) (Judgment)
Citation
IWW v Republic [2022] KEHC 15090 (KLR)
Media Neutral Citation
[2022] KEHC 15090 (KLR)
Court
High Court
Court station
High Court at Bungoma
Outcome
Allowed in part
Case number
Criminal Appeal E001 of 2022
Attorneys
Judges
DK Kemei
Judgment date
9 November 2022
Language
English
Type
Judgment
Collections
Date published
05 December 2022
Case action
Judgment
Court division
Criminal
Filing county
Bungoma
Order
(a)the appeal against conviction lacks merit and was dismissed. (b)the appeal against sentence succeeds to the extent that the sentence of twenty years’ imprisonment set aside and substituted with a sentence of fifteen years’ imprisonment which shall commence from the date of arrest namely December 22, 2021.
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1.The appellant, IWW, was charged before the senior principal magistrate’s court at Webuye in Sexual Offences Case No E001 of 2022 with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, No 3 of 2006. The particulars were that the appellant, on diverse dates between March 2021 and December 21, 2021 at [Particulars Withheld] in Webuye East Sub-County within Bungoma County, intentionally and unlawfully caused his penis to penetrate the vagina of SWM, a child aged Fifteen (15) years.
2.The appellant also faced an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006. The particulars were that the Appellant, on diverse dates between March 2021 and 21st December, 2021 at [Particulars Withheld] in Webuye East Sub-County within Bungoma County, intentionally and unlawfully caused his penis to come into contact with the vagina of SWM, a child aged Fifteen (15) years.
3.The appellant was convicted on his own plea of guilty and sentenced to serve twenty (20) years of imprisonment.
4.Being dissatisfied with the conviction and sentence, the appellant preferred this appeal on the following grounds:i.That the learned trial magistrate erred by convicting and sentencing him to 20 years’ imprisonment without considering his rights to fair trial as stipulated under article 50(2) of the Constitution.ii.That the learned trial magistrate erred in both law and fact by convicting him on what is termed ‘acting in wrong principles’.
5.The appellant also filed written submissions which reiterated his grounds grounds of appeal. He briefly submitted that the trial court failed to consider the appellants age and that they had lived together with the victim for two years as husband and wife in full knowledge of the victim’s parents. He further submitted that this court be guided by the Kenya judiciary sentencing policy guidelines and interfere with the meted-out sentence of 20 years as the minimum mandatory sentence under 8(3) is unconstitutional.
6.Grace Makangu the respondent’s counsel filed written submissions opposing the appeal. Counsel submitted that from the proceedings it is clear that the charges were read over to the appellant in a language that he understood, Kiswahili in this context, and he was duly cautioned of the seriousness of the offence before the facts were read to him again in Kiswahili. Counsel submitted that the sentence of 20 years was legal as per the law and this court should not interfere with the same.
7.This being the first appellate court, it has the duty of reevaluating the entire evidence and coming up with its own independent findings bearing in mind it did not have the privilege of examining the witnesses and will thus give an allowance for that. See Okeno vs R [1972] EA 72.
8.This court has considered this appeal and the rival submissions presented. The Appellant herein was charged and convicted on his own plea of guilty for the offence of defilement contrary section 8(1) as read with section 8 (3) of the Sexual Offences Act which states;'(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement’(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.'
9.There is no dispute here that the appellant pleaded guilty to both the charge and the detailed particulars read over to him, in a language he understood, as per the proceedings of the trial court. The appellant now says that his rights under article 50 (2) of Constitution were infringed upon by the trial court as it failed to inform him of the consequences of pleading guilty and that the investigating officer persuaded him that he would be given a lesser sentence ( non-custodial sentence).It is necessary for the court to deal with the appellant’s allegations of breach of his rights to fair trial guaranteed under article 50(2) of the Constitution.
10.From the trial court proceedings, it is evident that the charges were read to the appellant twice and that he was asked as to whether or not the facts on the same were true.
11.On December 28, 2021 the appellant appeared in court for plea. The proceedings as recorded were as hereunder: -'The substance of the charges and every element therefore had been stated by the court to the accused person in the language that he understands who being asked whether he admits or denies the truth of the charges replies: -AccusedMain count-ni ukweliAlternative count-ni ukweliCourtPlea of guilty enteredMs AwuorFacts are that on diverse dated between March 2021 and December 21, 2021 the accused and the complainant who was a girl friend to the accused have been meeting at XXXX market. After the meetings, the accused takes the complainant to his house at [particulars withheld] shopping centre and engages in sexual intercourse with the complainant. In August, 2021 the complainant got pregnant but the pregnancy was lost. The complainant went back home and the accused was warned against having a romantic relationship with the accused.On December 11, 2021 the complainant was sent to the posho mill. She went and never came back. On December 21, 2021 the complainant was found at the house of the accused. She was arrested together with the accused. The complainant said that the accused used to have unprotected sexual intercourse with her. When the complainant disappeared, the mother went and reported to her school [particulars withheld] secondary school where she was a form one student. The mother was given a letter to look for the complainant. When complainant was found she was taken to Webuye District Hospital for medical examination-Medical notes-Pexhibit 1-Lab test & results- Pexhibit 2-Post rape care form- Pexhibit 3P3 form- Pexhibit 4Photocopy of the birth certificate of the complainant-Pexhibit 5She was born on February 2, 2006That is allCourt to accused: Are the facts correct?Accused: the facts are trueCourt: Accused convicted on his own plea of guilty on the main count. No order is made as to the alternative.'
12.The appellant upon conviction on his own plea of guilty was asked to state his mitigation. He said in mitigation.'I agree. I have been married to the complainant for two years. The pregnancy did not miscarry, they aborted. The mother keeps asking me for money and she knew the complainant was in his home and we kept talking with her.'
13.The appellant despite being convicted on his own plea of guilty, was nonetheless aggrieved by both the conviction and sentence meted out against him by the trial court. His main contention is that his rights under article 50 (2) of the Constitution were not adhered to by the trial court.
14.There is no dispute here that the appellant pleaded guilty to the charge and the detailed particulars read over to him as per the proceedings of the trial court. The appellant now says his rights under article 50(2) of the Constitution were infringed upon and that being a layman in this context it was the duty of the court to inform him of the consequences of pleading guilty to the offence as it is in record that he pleaded guilty only after persuasion by the investigating officer that he would be given a lesser non-custodial sentence.
15.From the foregoing, it is essential for me to reiterate that the appellant herein was charged and convicted on his own plea of guilty for the offence of defilement contrary section 8 (3) of Sexual Offences Act which states;'(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.'
16.My perusal of the trial court record has not established where the investigations officer on record did persuade him to take a plea of guilty. He has not stated here that he did not understand the language used in court which means he understood the charge read over to him and the particulars well. He pleaded guilty on the main charge as well as the facts and hence the plea that was entered was unequivocal in every sense.
17.This court further finds that both the charge sheet and the detailed particulars read over to the appellant clearly disclosed the offence of defilement as defined under section 8 of the Sexual Offences Act, 2006. It disclosed that there was penetration and that the victim was aged 15 years at the material time.
18.The Court of Appeal has on several occasions reiterated the law on plea taking. In John Muendo M –vs- Republic [2013] eKLR, the court had this to say;'The legal principles to be applied in plea taking in all criminal cases were well enunciated in the locus classicus case of Adan vs Republic [1973] EA 445 where the court held:-i.'The charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands.ii.The accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded.iii.The prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts.iv.If the accused does not agree with the facts or raises any question of his guilt his reply must be recorded and change of plea entered.v.If there is no change of plea a conviction should be recorded and a statement of facts relevant to sentence together with the accused’s reply should be recorded.'
19.It is true that in cases where the offence committed carries a heavy penalty like death or life sentence, courts should treat plea taking with caution especially where the accused is unrepresented. In Abdalla Mohammed –vs- Republic [2018] eKLR Korir J expressed that importance by making the following observations;'15.The importance of the need for the court to be cautious when accepting a plea of guilty from an undefended accused person was stressed by Joel Ngugi, J in Simon Gitau Kinene v Republic [2016 eKLR when he stated that:'19. Finally, courts have always held that extra caution needs to be taken in the case of undefended defendants who plead guilty. I have previously held that where an accused person is unrepresented, the duty of the court to ensure the plea of guilty is unequivocal is heightened.'
20.The evidence on record points to the fact that the appellant was of sound mind at the time he pleaded guilty to the charge of defilement. There is also no evidence that he suffered from unsoundness of mind at the time he committed the offence. It is also self-evident that the court did conduct itself diligently within the ambit of article 50(2) of the Constitution of Kenya. The assertions that he was persuaded to make a plea of guilty were not established at all by the appellant and shall simply be termed as mere allegations by this court. Suffice here to add that the appellant did not see it fit to state the allegations which the trial court could have captured and then given directions and guidance regarding the kind of plea the appellant entered. In any case, the nothing barred the appellant to raise the issue that he had been duped by the investigating officer during his mitigation which could as well have qualified the plea and would have called for the trial court to enter a plea of not guilty. The appellant in mitigation confirmed that he had been married to the complainant for two years. The complainant being a minor could not have had capacity to consent to the defilement of the alleged marriage. Thus the mitigation by the appellant did not qualify the plea in any way. Iam satisfied that the plea entered by the trial court was unequivocal in all respects.
21.In the case before me, there is no medical evidence on the appellant’s state of mind at the time he took plea, and there is nothing from the court record to show that he may have been of unsound mind. It is obvious that the appellant was of sound mind going by the response he gave during mitigation. This was a man who knew what he was doing and further knew the charges he was facing.
22.Having pleaded guilty to the charge, I find that section 348 of Criminal Procedure Code precludes him from appealing on conviction.
23.In the circumstances, the plea taken was unequivocal and that section 348 of the Criminal Procedure Code bars the appellant from appealing on conviction in such circumstances.
24.On sentence, the appellant submitted that the sentence of 20 years’ imprisonment was manifestly excessive and that the prime objectives of criminal law is imposition of an adequate, appropriate, just and proportionate sentence commensurate with the nature and gravity of the crime and the manner in which the crime was committed.
25.In Dismas Wafula Kilwake vs Republic [2018] eKLR, the Court of Appeal set out the factors to be considered in sentencing under the Sexual Offences Act. It is observed as follows: -'We hold that the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter the commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.
26.In the Court of Appeal at Nyeri in Appeal No 84 of 2015 Joshua Gichuki Mwangi vs Republic, the appellate court placing reliance on the respective decisions of Odunga J (as he was then) in Philip Mueke Maingi & 5 Others v Director of Public Prosecutions & the Attorney General and that of Mativo J (as he was then) in High Court Constitutional & Judicial Review Division Petition No 97 of 2021 was aware of the fact that certain accused persons are clearly deserving of no less than the minimum sentences set forth in the Sexual Offences Act owing to the heinousness of the offences committed and they will continue to be appropriately punished as was pronounced in Athanus Lijodi vs Republic [2021] eKLR;'On the issue of sentence, we reiterate that the life sentence imposed by the trial magistrate and affirmed by the High Court is not unconstitutional and can still be meted out in deserving cases Muruatetu case (supra) notwithstanding. This court has on many occasions invoked the Muruatetu decision to reduce sentences that were hitherto deemed as minimum sentences. (See for instance Evans Wanjala Wanyonyi v Republic [2019] eKLR). Having said that however, we must hasten to add that this court will uphold a sentence prescribed by the Sexual Offences Act if upon proper exercise of sentencing discretion and consideration of the facts of each case, such sentence is deserved or merited.'
27.The appellate court further held that: -'On the other hand, there are definitely others deserving of leniency and this is the leeway we are asserting that ought to be at the disposal of courts. A good example is in the holding of this court in Korir vs Republic(Criminal Appeal 100 of 2019 [2021] KECA 305 (KLR) while reducing the appellant’s sentence to the period already served. It reasoned;'The appellant has contended that he was a first offender and a young man whose life is greatly affected by the imprisonment and that while in prison he had taken full advantage of the rehabilitative programmes offered in the correctional facility. It is also not lost on this court that the appellant has been in custody since February 2015, a period of slightly over 6 years to date. We also note that the appellant had serious intentions of marrying GC, a girl aged 15 years. However, the law does not allow for the marriage of girls below the age of 18 years. In our considered opinion and in view of the above, these factors coupled with the facts in this case mitigate for leniency. The appellant had the intention of marrying PW1. He took her to his grandparents’ place and left her to stay there. In applying the Muruatetu decision (supra) that removed the bar to discretion posed by minimum sentences, and considering that the appellant has been in custody for slightly over 6 years, we consider the period that he has served to be sufficient sentence in the circumstances of this case.'
28.The Seychelles Court of Appeal in Poonoo v Attorney-General SCA 38 of 2010) [2011] SCCA 30 (09 December 2011); stated that: -'Sentencing involves a judicial duty to individualize the sentence tuned to the circumstances of the offender as a just sentence. It cannot be likened to the mere administration of a common formula or standard or remedy.'
29.It again quoted from Thomas O'Malley thus: -'The proper exercise of discretion required attention to established guiding principles. In a sentencing context, the objective must be to achieve a viable mix of consistency and individualization.'
30.From the foregoing analysis, it is my view that what renders the sentence unconstitutional is the fact that the prescribed sentence completely precludes the court from exercising any discretion, regardless of whether or not the circumstances so require it. I find the appellant merits consideration on the sentence imposed by the trial court.
31.I now proceed to give due consideration to the mitigation and the circumstances in which the offence was committed. The birth certificate indicates that the complainant was born on February 2, 2006 while the incident took place on diverse dates from March 2022 and December 21, 2021. It would appear to me that by the month of March 2021, the complainant’s age had already crossed the threshold of 15 years and heading towards 16 years and was then fifteen years and about a month old and if it went on to December 21, 2021 then the complainant was about three months shy of sixteen years old. Hence the sentence ought to be 15 years and not 20 as ordered by the trial court. The circumstances appear to show that the appellant had purported to marry a very young and vulnerable girl and even went ahead to put her in the family way but the pregnancy aborted. The complainant who was then in form one secondary school did not deserve to have her studies disrupted by the rapacious appellant who did not value young girls. I find a sentence of fifteen years would be appropriate in the circumstances and which should commence from the date of arrest namely December 22, 2021.
32.In the result, the appeal against conviction lacks merit and is dismissed. The appeal against sentence succeeds to the extent that the sentence of twenty years’ imprisonment is hereby set aside and substituted with a sentence of fifteen years’ imprisonment which shall commence from the date of arrest namely December 22, 2021.It is so ordered.
DATED AND DELIVERED AT BUNGOMA THIS 9TH DAY OF NOVEMBER, 2022.D. KEMEIJUDGEIn the presence of:Isaac Wakukha Wanyonyi AppellantMiss Mukangu for RespondenKizito Court Assistant
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Date Case Court Judges Outcome Appeal outcome
9 November 2022 IWW v Republic (Criminal Appeal E001 of 2022) [2022] KEHC 15090 (KLR) (9 November 2022) (Judgment) This judgment High Court DK Kemei  
None ↳ exual Offences Case No E001 of 2022 Magistrate's Court Allowed in part