Javan Asiligwa v Republic [2014] KEHC 3964 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CRIMINAL APPEAL NO. 44 OF 2008

JAVAN ASILIGWA  :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::  APPLICANT

=VERSUS=

REPUBLIC  ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

JUDGMENT

The Appellant was convicted on three counts of having  unlawful carnal knowledge of three minors against the order of nature.  The offences were committed on diverse dates between 13th December, 2007 and 12th March, 2008.  On 27th June, 2008,  he was sentenced to 22 years imprisonment.

The Appellant filed at first a petition of appeal challenging both the conviction and sentence.  On  23rd June, 2014, I  granted  the Appellant leave under section 350 of the Criminal Procedure Code to amend his grounds  of appeal and to serve the Republic.  The  Appellant and the learned state CounselMr. Omwega agreed to proceed immediately with the amended petition of appeal.

It is material that the amended petition now challenges the sentence only.  The  Appellant was unequivocal that he has abandoned the appeal on conviction.  When  he addressed me, he  stated that the original appeal was not heard for years; that he has spent nearly six years in prison; and, accordingly, he intends to challenge the sentence handed  down only.  He submitted underground 1 and 3 that the sentence   the sentence is too harsh and that he has  already served a third of it.  He regrets the offences and he is a first offender.  Lastly, on grounds 2 and 4, he submitted that he is sickly, his sight is failing,  his children are suffering in his absence and that his wife  is barely able to provide for their daily needs.  He also stated that his land has been invaded and that a church has  been build on it.  Considering  his age, he pleaded for mercy and review of the sentence.

The appeal is contested by the State.  Learned  Counsel for the State Mr. Omwega referred to Section  162 (a) of the Penal Code for the proposition that the sentence of 21 years  is mandatory.  He conceded  that the sentence of 22 years handed down was unlawful in the circumstances. I was  urged to consider that since the victims of the offence were minors, the Court can only reduce the sentence to 21 years provided by the proviso to section 162 (I).  In a synopsis, the case for the State is that the minors were incapable of giving consent;  accordingly, the only sentence that could be handed down was for 21 years imprisonment.

I have heard the  rival submissions.  This  is a first appeal to the High Court.I have re-evaluated the evidence  on record and drawn my own conclusions.  Njoroge V republic [1987] KLR 99,  Okeno V Republic [1972] E.A. 32,Kariuki Karanja  V Republic [1986] KLR 190. The Lower Court analyzed  the evidence of the minors and the other prosecution witnesses vis-a-vis the defence proferred by the Appellant. The Court found the Appellant had carnal knowledge of the three minors and that his defence that he was being set up or  implicated by the minors was  untenable and a red-herring. In  my view, the evidence clearly placed the Appellant at the locus-in-quo, he had  opportunity and did commit the offences. In any event, the Appellant has unequivocally abandoned  the appeal on conviction.  I  thus find that the Appellant was properly convicted on all the three counts.

Section 162 (a) of the Penal Code provides that any person who has  carnal knowledge of any person against  the order of nature is guilty of a felony punishable by 14 years imprisonment.  However, under the proviso in section 162 (I), if the offence was committed “without the consent of the  person who was carnally known” the offender is liable to 21 years imprisonment.  The learned trial magistrate correctly found that the victims were minors.  From the evidence, they were aged 14 years.  They  were thus incapable of giving legal consent to be carnally known.  The  Appellant  was thus liable to imprisonment for 21 years.  The trial magistrate upon hearing mitigation of the Appellant said as follows:-

“ I have considered  the mitigating factors.  Accused person is remorseful.  He fends for  himself.  But  section 162 (a) (ii) ties my hands and places  the sentences at a minimum of 21 years. I can  see he is old.  For above reasons, accused is sentenced to imprisonment for 22 years with  hard labour in count 1. ”

The Appellant received similar  sentences in counts 2 and 3. The learned trial magistrate correctly stated the law at section 162 (a).  I am at a loss why he departed from 21 years to 22 years.  The sentence of 22 years was clearly unlawful.  Section 162 (a) (i) couched in mandatory terms.  So long as no consent was obtained the offender shall be sentenced to 21 years imprisonment.

The Appellant says he is old, that he is remorseful, that he needs to fend for his Children and assist his wife to protect his property.  Some  of those matters were taken  in mitigation.  But it is not lost on me that the three  minors were vulnerable persons who will carry the scars of this offence for life.  The  age and medical situation of  the Appellant fades in comparison to the gravity of the offences and the ages of the minors.  Furthermore, the law is in black and white: the sentence of  21 years is mandatory.

Granted those circumstances, I will set aside the sentence of 22 years and replace it with the lawful sentence of 21 years.  The  appeal thus succeeds narrowly on that point to the extent that  the Appellant shall serve the  sentence of 21 years on all the three counts or the remainder of the term thereof.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 23RD JUNE, 2014.

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G.K. KIMONDO

JUDGE.

Judgment read in open Court in the presence of:-

Javan Asiligwa  (Appellant in person)

Mr. Omwenga  (State Counsel)

Beatrice  (Court Clerk)

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G.K. KIMONDO

JUDGE.

23/6/2014.