Jacob Kisoso Kuntai v Republic [2016] KEHC 861 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL NO. 22 OF 2014

JACOB KISOSO KUNTAI……………….......….APPELLANT

VERSUS

REPUBLIC………………………………...…..RESPONDENT

(Being an appeal from the original Conviction and Sentence of the Chief Magistrate’s Court at Machakos by Hon. P.M. Mugure (RM)) in Criminal Case No.  563 of 2013 dated 11th August, 2014)

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JUDGMENT OF THE COURT

1. The appellant Jacob Kisoso Kuntai was charged in count 1 with the offence of Robbery which charge. He pleaded guilty and was sentenced to serve seven (7) years in jail.  In count II he was charged with the offence of Rape contrary to Section 3(1) as read with Section 3(3) of the Sexual Offences Act No. 3 of 2006.  He was convicted and sentenced to fifteen (15) years. The sentences in both counts are to run concurrently. The appellant does not appeal against conviction in both counts, but not being satisfied with the sentencing on both counts the appellant appealed against sentencing basing the same on the grounds that he is a young person who has learned a lesson and prays to be given a second chance to rejoin the society as he is the sole bread winner of his old parents aged 75-90 years old.  He also stated that this was his first offence and he promised not to engage in such activities again. The appellant also prayed for a non-custodial sentence and that he was remorseful.

2. The State opposed the appeal stating that the appellant was convicted of an offence carrying a minimum sentence of ten (10) years and a maximum of life sentence.  After the court had considered the appellant’s mitigation he was given fifteen (15) years.  The ground of remorsefulness or that he is now a trained carpenter are not good enough grounds to allow the appeal.  Although the court has powers to interfere with sentence it can only do so where there are special circumstances or where there was an error in principle in arriving at the sentence or where the sentence is manifestly excessive.  None of these are in this particular appeal. The State submitted that the appeal be dismissed and the conviction and sentence be upheld.

3. I have considered the appeal, and the opposition to it.  The trial court did not abuse its power in sentencing.  The charges that faced the appellant were very serious.  In count 1 he pleaded guilty, while in count No. 2 he was convicted.  This court has no reason to interfere with the sentence of fifteen (15) years given in count II.

4. The appeal is not merited and the same is dismissed.  The appellant shall serve the entire sentence as given by the trial court.

5. The appellant has the right to appeal to Court of Appeal.

THATis the judgment of the court.

DATED, SIGNED AND DELIVERED THIS 15TH DAY OF NOVEMBER, 2016

E.K.O. OGOLA

JUDGE

In the presence of;

Mr. Machogu for State

Appellant present in person

Court Assistant – Mr. Munyao