Elias Munene Muchira v Republic [2017] KEHC 2343 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NANYUKI

CRIMINAL APPEAL NO. 108 OF 2016

ELIAS MUNENE MUCHIRA …. APPELLANT

VERSUS

REPUBLIC  ……………...…. RESPONDENT

(Being an appeal from the original conviction and sentence in NanyukiChief Magistrate’s Court Criminal Case No. 1212  of 2015  by Hon. E. NgigiSenior Resident Magistrate on 22nd July 2016)

JUDGMENT

1. ELIAS MUNENE MUCHIRA after trial before the Chief Magistrates Court at Nanyuki was convicted over attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act.  On conviction he was sentenced to 10 years imprisonment.  He was aggrieved by that sentence and has filed this appeal.

2.  In his submissions which he has entitled as mitigation he submitted that he is a first time offender who is now reformed and promises to keep law and order and seeks the reduction of his sentence.  He also submitted that he had been trained during his stay at the prison but he did not indicate what that training was.

3.  Mr. Tanui the Principal Prosecuting Counsel opposed the appeal against sentence.  He submitted in opposition that the Sexual Offences Act provides a minimum sentence on the charge of defilement under section 9(2).  He also drew the attention of the court to the age of the victim which was 8 years.  He therefore sought the dismissal of the appeal.

4. According to the trial court’s proceedings the appellant was an employee in the neighbouring homestead where the victim lived.  According to the evidence of the victim an eight year old girl the appellant attempted to defile her on two occasions.  He threatened her with death if she disclosed those two incidents.  As a consequence the minor girl did not tell anyone about the incidence.  It was not until she fainted and on being taken to hospital and on the doctor carrying out investigation it was found that the minor had been defiled.  It was then that the minor disclosed what the appellant had done to her.

5.  Bearing in mind the submissions made it is important to state that an appellant court does not alter a sentence on the ground that it might have passed a different sentence.  See the case of MACHARIA VS REPUBLIC (2003)KLR.  Bearing the above in mind and that the sentence provided under section 9 of the Sexual Offences Act the sentence of the trial court was not in any way excessive to attract interference by this court.

6. On that ground alone the appellant appeal fails.  The trial court’s sentence is hereby confirmed.

DATED and DELIVERED at NANYUKI this 8th day of NOVEMBER 2017

MARY KASANGO

JUDGE

CORAM

Before Justice Mary Kasango

Court Assistant: Njue/Mariastella

Appellant: Elias Munene Muchira  …………..……………………………

For the State: …...............................................

Language:  ……………………………………………………..

COURT

Judgment delivered in open court.

MARY KASANGO

JUDGE