DOA v Republic [2023] KEHC 25897 (KLR)

DOA v Republic (Criminal Appeal E038 of 2023) [2023] KEHC 25897 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25897 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal E038 of 2023

RE Aburili, J

November 21, 2023

Between

DOA

Appellant

and

Republic

Respondent

(From the original conviction and sentence in Senior Principal Magistrate’s Court Criminal Sexual Offences Case No. E031 of 2022 at Winam)

Ruling

1. This appeal is against sentence only. The Appellant DOA was convicted and sentenced to serve twenty (20) years imprisonment for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006.

2. In his Petition of Appeal filed on 15th August 2023, he claims that he was a first offender, that long incarceration period will ruin his life as he is the sole breadwinner of his young family and that the sentence was ambiguous.

3. The appeal was heard orally with the appellant submitting and praying for leniency so that he can go to help his children who are aged 14, 7 and 5 years old.

4. He stated that his victim was his step daughter – his second wife’s daughter and that they lived together in Kisumu. He stated that it is the devil which drove him to commit the offence and that he knows that what he did was wrong.

5. Opposing the plea for sentence reduction, the ODPP filed written submissions dated 16th November 2023 contending that the sentence imposed was appropriate as it is the minimum provided for under Section 8(3) of the Sexual Offences Act.

6. The prosecution cited that cases of Maingi & 5 Others vs DPP & Another Petition No. E017 of 2021 and Court of Appeal Nyeri Criminal Appeal No. 84 of 2015 Joshua Gichuki vs Republic as well as Athanus Lyodi vs Republic (2021) eKLR on how courts have applied or exercised discretion in sentencing.

7. It was submitted that albeit minimum sentences are unconstitutional, it does not negate the fact that in exercise of discretion, the court may give a sentence equivalent to what is stated in the Act (sic). That where the court deems fit, it can mete out the minimum sentence or go above.

8. That the appellant was a step father to the victim thus he was a person entrusted with the child and he breached that trust by defiling the victim severally hence a sever and deterrence was necessary. Counsel prayed that the 20 years imprisonment be affirmed.

9. I have considered the appeal against sentence and the submissions for and against the appeal. I have also considered the circumstances under which the offence was committed with the appellant defiling the victim through penetration of both her vagina and her anus whenever her mother was away. She was aged 12 years old and the Appellant was married to her mother.

10. From the evidence on record and how the appellant defiled the minor, he traumatized her and her mother and threatened to kill them if they disclosed anything.

11. The appellant denied ever defiling the child and now he claims that the devil made him defile her and that his young family is suffering. In his defence he levelled all manner of allegation against the child’s mother in order to get off the hook.

12. I note that he was a first offender but he traumatized a young child. Sentencing is in the discretion of the trial court. The trial court imposed the mandatory minimum sentence of 20 years meaning he could still have imposed more as the law permitted him to do so. That sentence is lawful.

13. The appellant having realized his evil action, avoided challenging his conviction. He has approached this court seeking for leniency, as he is a breadwinner to his children who are also suffering. That may be so but can the appellant even be trusted with his own children unless he is fully rehabilitated and reformed? I doubt.

14. Having regard to the circumstances under which the offence was committed, the mitigations and the submissions by the respondent, and as the trial court did not exercise any discretion in sentencing, I shall interfere with the lawful but mandatory minimum sentence imposed on the appellant. I set aside the twenty (20) years imprisonment imposed and substitute with fifteen (15) years imprisonment which sentence shall be calculated from 8th May 2022 when the appellant was arrested.

15. I so order.

16. This file is closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 21STDAY OF NOVEMBER, 2023R. E. ABURILIJUDGE