Benard Cheluget v Republic [2017] KEHC 2034 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

CRIMINAL APPEAL NO 30C OF 2016

(From the original conviction and sentence in Criminal Case No. 661 of 2015 in  the Chief Magistrate’s Court at Narok,  R. v. Benard Cheluget)

BENARD CHELUGET …………APPELLANT

VERSUS

REPUBLIC ……………………RESPONDENT

JUDGEMENT

1. The appellant  has appealed against his sentence of 10 years imprisonment in respect of the offence of indecent act contrary to section 11 (1) of Sexual Offences Act No. 3 of 2006.

2. The state has supported the sentence.

3. In his petition of appeal to this court, he has raised 8 grounds of appeal, all of which amount to mitigating factors.  It is important to point out that the appellant made oral submissions urging the court to impose a non-custodial sentence.  He also filed written submissions titled “Submission grounds,” which amounted to challenging the conviction.  When I pointed out to him to indicate whether he was proceeding with his appeal against the conviction, he explicitly   abandoned it and decided to pursue his appeal against   sentence only.

4. The grounds in his petition of appeal amount to mitigating factors.  The appellant has stated that he did not plead guilty and that he is married with 5 children,  who depend on him for their education.  He has also stated that he is the sole breadwinner of his family and that he is a first offender.  Furthermore, he has stated that being in prison has caused him mental torture,  which might eventually lead to losing his family.  Finally, he has stated that his relations with the  community is very good and for that reason he urges the court to impose a non-custodial sentence.

5. In sentencing the appellant, the trial court found that the appellant’s children depended on him in the same way like any other children, who are in need of protection like the complainant.The court then proceeded to impose a 10 years imprisonment sentence.

6. This is a first appeal.  As a first appeal court I am required to reconsider the principles upon which the appellant was sentenced to 10 years imprisonment.  The complainant was aged five years when the appellant committed the offence in relation to her.  As at that time the complainant was taken from the company of other children with whom she was playing outside the house of the appellant.  Thereafter he took her to his house and removed her clothes.  After doing so, he proceeded to touch her private parts.

7. Sentencing is a matter for discretion of the trial court in terms of section 28 (1) (b) of the Penal Code (Cap 63) Laws of Kenya. An appeal court may only interfere with the discretion that is exercised by the trial court if that court proceeded on wrong principles in sentencing the appellant.  Additionally, an appeal court may also interfere with the sentence imposed if it is manifestly lenient or excessive so as to amount to a miscarriage of justice.

8. In the instant appeal, I find that the trial court  acted on the  correct principles in sentencing the appellant.  It therefore follows that there is no basis for this court to interfere with that sentence.

9. The upshot of the foregoing is that the appellant’s appeal is hereby dismissed.

Judgement delivered in open court this 3rd day of October, 2017 in the presence of the Appellant and Mr. Mukofu for the Respondent.

J. M. Bwonwonga

Judge

3/10/2017