James Macharia Ndegwa v Republic [2019] KEHC 6889 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CRIMINAL APPEAL NO. 21 OF 2017

JAMES MACHARIA NDEGWA............................APPELLANT

VERSUS

REPUBLIC............................................................RESPONDENT

[Appeal from the original conviction in Criminal Case No. 170 of 2015 at the Principal

Magistrate’s Court at Kangema by J. O. Magori, Principal Magistrate, on 4th April 2017]

JUDGMENT

1. The appellant was adjudged guilty of rape of a woman with mental disability contrary to section 7 of the Sexual Offences Act. He was sentenced to 10 yearsimprisonment.

2. The offence was committed on 12th March 2015 at G. village[particulars withheld], Murang’a County. The particulars were that he caused his penis to penetrate the vagina of T.W. [particulars withheld], a woman suffering from mental disability.

3. This appeal only relates to the sentence. The original petition was filed on 18th April 2017. It challenged both his convictionand sentence. However, on 22nd May 2019, the appellant unequivocally abandoned the appeal on conviction.

4. The evidence of PW2 established that the victim was suffering from a mental disability since the year 1973. He caught the appellant red handed. The narrative was confirmed by PW3 and PW4. Medical evidence from PW1 corroborated the rape. I thus find that the conviction was safe.

5. The appellant pleaded for leniency. He said he isremorseful for his actions. In a synopsis, the entire appeal is a plea for mercy.

6. The appeal is contested by the Republic. The case for the State is that the appellant received the minimum sentence. I was implored to dismiss the appeal.

7. This is a first appeal to the High Court. I have re-evaluated all the evidence on record and drawn my own conclusions.  Njoroge v Republic [1987] KLR 19, Okeno v Republic [1972] EA 32, Kariuki Karanja v Republic[1986] KLR 190.

8. Section 354 (3) of Criminal Procedure Code empowers this court to review the sentence. In Macharia v Republic [2003] 2 E.A 559 the Court of Appeal held-

“The Court would not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it would not ordinarily interfere with that discretion exercised by a trial judge, unless it was evident that the judge acted upon some wrong principles or overlooked some material factors.”

9. The learned trial magistrate considered that the appellant was a first offender. The appellant in mitigation said: “I have children who depend on me”. I cannot say he applied wrong principles or overlooked some material factors.

10. Despite the fresh clamour for leniency, this was a serious felony. Section 7 of the Sexual Offences Act provides for a minimum sentence of ten years. That is the sentence that was handed down to the appellant.

11. The appeal is dismissed.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 12th day of June 2019

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of-

Appellant.

Ms. R. Gichuru for the Republic.

Ms. Dorcas and Ms. Elizabeth, Court Clerks.