J M M v Republic [2013] KEHC 1544 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL NO. 109 OF 2011

J M M ………............….................................................APPELLANT

VERSUS

REPUBLIC………………………………………..….RESPONDENT

(Being an appeal from the original conviction and sentence in Yatta Senior Resident Magistrate’s Court, Criminal Case No. 27/2010 by Hon. A.W.Mwangi  on 30/11/2010)

JUDGMENT

JMM, the appellant was charged with the offence of incest by male  person contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006.  In the alternative, committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, No. 3 of 2006.

In count 2, the charge is deliberate transmission of HIV contrary to section 26(1) (a) of the Sexual Offences Act, No. 3 of 2006. He was convicted on his own plea of guilty on the charge of incest and deliberate transmission of HIV.

He now mitigates on sentence.  The appeal was based on grounds that having pleaded guilty he saved courts time; he committed the offence under the influence of alcohol; he is now reformed; the sentence imposed is too harsh and excessive; and  he is the sole breadwinner of his family which will  suffer.

At the hearing he emphasized the fact that the sentence is harsh.

The learned State Counsel, Mr. Mwangi stated that the complainant was the accused’s daughter aged nine (9) years whom he had carnal knowledge of and deliberately infected her with HIV.  He asked the court to confirm the sentences meted out which were within the law.

The appeal being against sentence, I will not delve into details of facts of the case perpetrated that were admitted by the appellant leading to conviction.  This would however call on me to consider what was relevant to the sentence meted out.

In arriving at the sentences, the trial court took into consideration the nature of the offences committed and deemed the minimum prescribed sentence for each offence suitable.  What the trial court failed to appreciate was the fact that the appellant abused the trust the child had in him as a parent.  She was infected with a deadly disease which is as good as being handed a death sentence. In the circumstances, though the sentence was permitted by statute, it was disproportionate.

Section 354 (3) (b) of the Criminal Procedure Code empowers me to enhance sentence where I find appropriate.  This is a case that calls for increase of sentences imposed.  I therefore dismiss the appeal on sentence, set aside sentences imposed and  order as follows:-

Count 1 – the appellant shall now serve 15 years imprisonment.

Count 2 -the appellant shall serve 25 years imprisonment.  Sentences to run concurrently.

It is so ordered

DATED, SIGNED and DELIVEREDat MACHAKOS this 30THday of OCTOBER, 2013.

L.N. MUTENDE

JUDGE