Jonah Isindu Limiti v Republic [2019] KEHC 3737 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

CRIMINAL DIVISION

CRIMINAL APPEAL NUMBER 104 OF 2015

BETWEEN

JONAH ISINDU LIMITI..........APPELLANT

AND

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

(Being an appeal against conviction and sentence of 15 years imprisonment for the offence of Defilement contrary to Section 8 (1) as read with section 8(4) of the Sexual Offences Act, 2006 in a judgment delivered by Hon. Dennis Ogal, Resident Magistrate on 11th September, 2015 in Kakamega CM's Court Criminal Case No. 105 of 2014)- (SO)

CORAM: LADY JUSTICE RUTH N. SITATI

JUDGMENT

Background and Brief Facts

1. This appeal arises from the judgment of the learned trial magistrate aforementioned. The appeal filed by the appellant on 23rd September, 2015 seeks nullification of the said decision on the following grounds as set out in his petition of appeal inter alia THAT:-

a. I did not plead guilty to the above appended charge(s).

b. The trial court convicted me without considering that the evidence tendered was malicious, uncorroborated, fabricated and was meant to implicate me with this crime.

c. The trial court erred both in law and fact in convicting me without considering that the person who tested the age of PW1 did not come to testify and be cross examined as to how he or she arrived at the conclusion or what instrument or method used or it was just guess work.

d. I was not medically tested to confirm indeed if it was me who did commit the said act or someone else.

e. The medical report did not categorically state that I was the one who committed the said act.

f. The trial court did not consider that the investigating officer did not visit the alleged scene of crime to verify if indeed the said crime was committed.

g. The trial court did not consider that the alleged scene of crime was near a posho mill where many people are and what did hinder the people there not to respond to the cries of PW1 if indeed she was being defiled by me.

h. The more grounds will be adduced when I get the lower court proceedings.

i. The sentence was very harsh in the circumstances.

2. The case against the appellant was one of defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act, 2006. The appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act, 2006. The particulars are that the appellant on the 21st day of November, 2014 in Kakamega South District within Kakamega County intentionally and unlawfully caused his penis to penetrate the vagina of  a girl named SIM who was 16 years of age.

3. At the conclusion of the trial, the trial magistrate convicted the appellant in the main charge of defilement contrary to Section 8 (1) as read with Section 8(4) of the Sexual Offences Act, 2006and sentenced him to 15 years imprisonment, as provided under the Act.

4. It is the said conviction and sentence that form the basis of the instant appeal.

5. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu -vs- Republic [2010] eKLR  where the Court of Appeal stated:-

“The duty of the first appellate court is to analyse and re-evaluatethe evidence which was before the trial court and itself come to itsown conclusions on that evidence without overlooking theconclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”

Issues of Determination

a. Whether SIM's age was assessed and determined correctly by the trial court.

b. Whether there was improper, intentional and unlawful penetration of the vagina of SIM.

c. whether the appellant was positively identified.

Whether SIM's age was assessed and determined correctly by the trial court

6. The appellant challenged his conviction stating that the person who tested the age of SIM did not come to testify and be cross-examined as to how he or she had arrived at the conclusion and what instrument or method was used to determine SIM's age. The appellant added that the assessment of SIM's age may have been based on guess work.

7. Section 8(1) and 8(4) of the Sexual Offences Act, 2006 provides as follows:-

8. Defilement

1.  A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

2. …..............................................................................................

3. . …..............................................................................................

4. A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon       conviction to imprisonment for a term of not less than fifteen years.

5.  …..............................................................................................

6.  …..............................................................................................

7. …..............................................................................................

8.  …..............................................................................................

8. Section 11 (1) of the Sexual Offences Act No. 3 of 2006 provides as follows:-

11. Indecent act with child or adult

(1) Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a  child and is liable upon conviction to imprisonment for a termof not less than ten years.

9. The Sexual Offences Act defines “Child” within the meaning of the Childrens Act No. 8 of 2001 which defines a “Child” as “........any human being under the age of eighteen years.”

10. In the case of Martin Okello Alogo -vs- Republic [2018] eKLR the court stated that:-

“On the issue of whether the age of complainant was proved, the importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. The age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim. See Alfayo Gombe Okello -vs- Republic Cr. Appeal No. 203 of 2009 (KSM) where the Court of Appeal stated:-

“In its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim as necessary ingredientof the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from  proof of the offence under Section 8 (1).....”

11. In the case of Joseph Kieti Seet -vs- Republic [2014] eKLR, H.C.atMachakos Criminal Appeal No. 91 of 2011, Mutende, J. held as follows:-

“It is trite law that the age of a victim can be determined by medical evidence and other cogent evidence. In the case of FrancisOmuroni -vs- Uganda, Court of Appeal Criminal Appeal No. 2 of 2000, it was  held thus:

“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the onlyperson who could professionally determine the age of thevictim in the absence of any other evidence. Apart frommedical evidence age may also be proved by birth certificate,  the victim's parents or guardian and by observation and common sense.........”

12. The Court of Appeal in the case of Hadson Ali Mwachongo -vs- Republic [2016] eKLR stated as follows regarding the issue of age of the victim in cases arising out of sexual offences:-

“Before we conclude this judgment, it is necessary to say aword on computation of the age of the victim. The Sexual Offence Actprovides punishment for defilement in a graduated scale. Theyounger the victim, the more severe the punishment. Where the victim is aged 11 years or less, the prescribed punishment attracts 20 years imprisonment while defilement of a child aged 16 years to 18 years in punishable by 15 years imprisonment. Rarely will theage of thevictim be exact, say exactly 8 years, 10 years, 13 yearsetc, as at the date of defilement to be treated as 11 years old oras more than 11 years old? If the victim is treated as more than 11years old, to whatterm is the offence to be sentenced since thevictim has not attained 12 years for which a sentence is  prescribed?In the same vein, in thepresent appeal where the victim was aged15 years and a couple of months old, but was not    yet 16  years old,is the appellant to be sentenced as if the victim was exactly 15 years or as if she was 16 years old?..........

13. SIM testified as PW1 and stated that she was 15 years old. SIM's mother, RL testified as PW2 and stated that SIM was 16 years old and the age assessment report (Pexhibit 4) which was produced by PC Penina Lesanguri Kusi who testified as PW4 indicated that SIM was approximately 16 years of age. The said report stated that SIM was clinically assessed, noting the lower left and upper right third permanent molars were partially erupted.

14. I find that the evidence of PW2 who is SIM's mother together with the age assessment report proves that SIM was not over the age of eighteen years and was most probably around 16 years on the material date and thus any improper and unlawful sexual activity with her falls within the ambit of “Defilement” under section 8 (1) and the punishment within Section 8 (4) of the Sexual Offences Act or Section 11(1) if the offence is one of committing an indecent act with a child or adult of the same Act.

15. On the ground that the doctor who assessed the age of SIM was not called to testify, Section 77 of the Evidence Act states that:-

“77. Reports by Government analysts and geologist

(1) In criminal proceedings any document purporting to be a report under the hand of Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.

(2) The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualification which he professed to hold at the time when he signed it.

(3) When any report is so used the court may, it it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist, as the case may be and examine him as to the subject  matter thereof.”

16. In the case of Daniel Kipkemoi Sawe -vs- Republic [2018] eKLR Mumbi Ngugi, J. held that:

“I have considered this ground of appeal and the submissions of the parties with respect thereto.It is correct that in certain circumstances, a medical report may be inadmissible where it is not produced by its maker. In Naomi Bonareri Angasa -vs- Republic[2018] eKLR the court stated as follows:-

“Whether the P3 medical form was admissible depends on  whether it is produced by the maker thereof or under Section 77 of the Evidence Act (Chapter 80 of the Laws of Kenya). The doctor who examined PW1 and prepared the P3 form was not called. Section 77 of the Evidence Act allows a personother than the one who prepared a report such as the P3forms in issue to produce it provided the presumption of authenticity is met. The section provides as follows:-

“Once the presumption of authenticity under Section77 (2) aforesaid is met the document is admissible but he trial court may, suo moto upon request  by the accused person, call for maker of such document to  appear in court for cross examination on the form and content of the report. In Joshua Otieno Oguga -vs- Republic KSM CA Criminal Appeal No. 183 of 2009 [2009] eKLR the Court of Appeal considered the same   issue and held:-

That in short mean that if the appellant wanted the medical report to be produced by a doctor, he had to apply to the court o summon the doctorwho prepared the report, otherwise there wasnothing wrong in law in the P3 form beingproduced by PC Ann Kambui as she did.

In this case, the prosecution did not lay any basis for the admission of the document. PW4 only testified that the doctor could vouch for his qualification  or even confirm that he was familiar with his handwriting and signature. He only stated that he doctor who prepared the  report had left public service. The medical evidence was therefore inadmissible.

17. Similarly, in this case, there was nothing wrong in law for PW4 to produce the age assessment report and it was upon the appellant to apply to court to summon the doctor who prepared the age assessment report if he so wished. The wordings of Section 77 of the Evidence Actare couched in discretionary terms meaning that the trial court had the option of either summoning or not summoning the doctor who prepared the age assessment report. There is also a presumption that the doctor who prepared the age assessment report was qualified to do so and thus in the absence of any evidence to the contrary, I find that the said report was rightly produced and admissible in evidence at the trial.

Whether there was improper, intentional and unlawful penetration of the vagina of SIM

18.  SIM testified as PW1 and stated that the appellant “used his thing and put it here”(minor points at her private parts – vagina) and that she “felt pain as he was doing that thing”.

19. R L, SIM's mother testified as PW2 and stated that on 26th November, 2014, SIM told her that the appellant had pulled SIM into his house, pushed her to the bed, slapped her three times and removed her clothes. PW2 added that she saw SIM bleeding from her private parts. PW2 stated that she took SIM to hospital at Shiseso where she was treated and given treatment notes and then later PW2 took SIM to the police station where they were issued with a medical P3 form.

20. Dr. Winstone Ongola, a senior medical officer at Kakamega County General Hospital testified as PW3 and stated that SIM had informed him that she was defiled on 21st November, 2014 at around 1. 00 p.m. PW3 added that on physical examination, he noted bruises on the inner thigh  and SIM could not walk properly. PW3 stated that on vaginal examination, he noted that the labia minora was inflamed and had tears; the hymen was torn and the walls of the vagina were bruised. PW3 further noted that there was a whitish discharge from the vagina. PW3 stated that the incident had happened 7 days before he filled the medical P3 form. PW3 testified that he came to the conclusion that SIM had been defiled.

21. The Sexual Offences Act defines “penetration” as

“the partial or complete insertion of the genital organs of a person into   the genital organs of another person”

22. The Court of Appeal, in the case of Sahali Omar -vs- Republic [2017] eKLR, noted that:

“.....penetration whether by use of fingers, penis or any other gadget is still penetration as provided for under the Sexual Offences Act.”

23. From evidence on record, I am satisfied that SIM was defiled and that there was improper, intentional and unlawful penetration of her vagina.

Whether the appellant was properly and positively identified

24. SIM testified that it was the appellant who “used his thing and put it here” (minor points at her private parts – vagina) and that she “felt pain as he was doing that thing”. PW1 added that the appellant was well known to her and lived only a little distance  away from SIM's home and that the appellant defiled her only once. SIM added that she knew the appellant as he used to pass by her home. PW2 stated that she personally knew the appellant and also knew where his house was. PW3 stated that SIM told him that she had been defiled at around 1. 00 p.m.

25.  In his defence, the appellant stated that SIM was not known to him and that he saw her for the first time in court. The issue that arises here is whether SIM's evidence was sufficient to nail the appellant to the alleged crime.

26. In the case of Maitanyi -vs- Republic [1986] eKLR it was held that:-

“Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of asingle witness respecting identification, especially when it is knownthatthe conditions favouring a correct identification weredifficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.”

“.........That may sound too obvious to be said, but the strange fact is that many witnesses do not properly identify another person even in  daylight. It is at least essential to ascertain the nature of the lightavailable. What sort of light, its size, and its position relative to the suspect, are all important matters helping to test the evidence with the greatest care. It is not a careful test if none of these matters are known because they were not inquired into. In days gone by, there  would have been a careful inquiry into these matters, by the committing magistrate, state counsel and defence counsel. In the absence of all these safeguards, it now becomes the great burden of   senior magistrates trying cases of capital robbery to make these inquiries themselves.”

“It must be emphasized that what is being tested is primarily the  impression received by the single witness at the time of the incident. Of course, if there was no light at all, identification would havebeen impossible. As the strength of the light improves to great brightness, so the chances of a true impression being received improve.”

27. The Court in the case of Titus Wambua -vs- Republic [2016] eKLR cited the Court of Appeal in Karanja & Another -vs- Republic [2004] 2 KLR 140, 147 (Githinji JA, Onyango Otieno & Deverll Ag JJA), to the effect that:-

“The law as regards identification under difficult conditions is now well settled. In the case of Cleophas  Otieno Wamunga -vs- Republic Court of Appeal Criminal Appeal No. 20 of 1989 at Kisumu, the court stated as follows:-

“We now turn to the more troublesome part of this appeal, namely the appellant's conviction on counts 1 and 2 charging  him with the robbery of Indakwa (PW1) and Lilian Adhiambo Wagude (PW3). Both these witnesses testified that they recognized the appellant among the robbers who attacked and robbed them.....What we have to decide now is whether that evidence was reliable and free from possibility of error so asto find a secure basis for the conviction of the appellant. Evidence of visual identification in criminal cases can bringabout a miscarriage of justice and it is of vital importancethat such evidence is examine carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more  identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification. The way to approach the evidence of  visual identification was succinctly stated by Lord Widgery, CJ in the well known case of Republic -vs- Turnbull [1976] 3ALL ER  549 at page 552 where he said:-

“Recognition may be more reliable than identification of a stranger; but even when the witness is purportingto recognize someone who he knows, the jury should bereminded that mistakes in recognition of close relatives  and friends are sometimes made.”

28. In the case Lawrence Chamwanda & Another –vs- Republic [2016] eKLR C. Mwita J. observed that:

“………The complainant gave identity of her assailants and on the basis of that information, the appellants were arrested and stolen items recovered. This was in line with the holding in the case of Simiyu & Another –vs- Republic [2005] 1KLR 192 on the need to give a description of the attackers where the complainant alleges to have identified or recognized them. (See Lessavay -vs- Republic [1998] KLR 783), Francis Kariuki Njiru & 7 others –vs- Republic 2001 eKLR).

29. It is my finding that the appellant in the instant case was properly and positively identified by recognition based on the testimony of SIM which was corroborated by PW2. The appellant was someone well known to both SIM and PW2 and in any case, the incident happened at 1. 00 p.m. which was during the day.  There was also sufficient lighting for SIM to be able to identify and recognize the appellant.

30. As regards conviction, I am satisfied that the age of SIM was correctly assessed at 16 years old going by the evidence of the age assessment report and that of her mother PW2. I further find that the age assessment report was properly produced during the trial by PW4, even though she was not the maker of the document, by virtue of Section 77 of the Evidence Act. The appellant having been at liberty to apply to the trial court for the doctor who conducted the age assessment  of SIM to be brought before it for purposes of cross-examination, and having failed to do so, the trial court was not obligated to summon  the said doctor for cross-examination by either the appellant or the court itself.

31. I also find there was improper, intentional and unlawful penetration of the vagina of SIM by the appellant as seen from the evidence of PW3, the Post Rape Care Form (Pexh. 3), medical P3 form (Pexh. 2), ad treatment notes from Shiseso Model Health Centre (Pexh. 1).

32. It is also my considered view that the defence of the appellant did not absolve him from the offence for which he was charged. I find his defence to comprise mere and general denials which did not dislodge the prosecution evidence against him.

33. On the ground that the appellant was not medically tested to confirm if he was the one who committed the said offence, section 36 (1) of the Sexual Offences Act, 2006 provides thus:

“36. Evidence of medical, forensic and scientific nature

(1) Notwithstanding the provisions of Section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an  appropriate sample or samples be taken from the accused  person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence.”

34. The wording of section 36 (1) above is couched in discretionary, rather than mandatory terms. The above provision was a subject of discussion by the Court of Appeal in the case of Robert Mutingi Mumbi -vs- Republic, Criminal Appeal No. 52 of 2014 (Malindi) where the appellate Court of Appeal stated:

“Section 36 (1) of the Act empowers the court to direct a person charged with an offence under the Act to provide samples for tests, including for DNA testing to establish linkage between the accused person and the offence. Clearly that provision is not couched in mandatory terms. ………DNA evidence is not the only evidence of which commission of a Sexual Offence may be proved.”

35. This Court in the case of Martin Okello Alogo -vs Republic [2018] eKLR (Supra), cites the case of Williamson Sowa Mbwanga –vs- Republic where the Court of Appeal stated:

“……...As the Court of Appeal of Uganda rightly stated, in the Sexual Offence of defilement, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence and it is not necessary that the hymen be raptured………It is partly for this reason that Section 36 (1) of the SOA is couched in permissive rather than mandatory terms, allowing the Court, if it deems it necessary for purpose of gathering evidence to determine whether or not the accused person committed the offence, to order that samples be taken from him for forensic, scientific or DNA testing.”

36. From the above, it is clear that medical examination on the appellant was not mandatory but discretionary as there are ways other than Michael or DNA evidence to prove the commission of a sexual offence.

37. On the issue that the sentence imposed was very harsh in the circumstances, I note that section 8 (4) of the Sexual Offences Act (supra) provides that  upon conviction the offender shall be imprisoned for a term of not less than fifteen years. It is thus clear that  at the time of passing the sentence, upon the appellant herein, the Learned Trial Court had its hand bound at the back by the strict sentences provided under the Sexual Offences Act.

38. The Supreme Court decision in Francis Karioko Muruatetu & Another -vs- Republic [2017] eKLR and subsequent decisions by the Court of Appeal have ruled that the mandatory minimum sentences no longer have a place in our jurisdiction because they deprive the trial court of its discretion to mete out a sentence that is commensurate with the gravity of the circumstances surrounding the commission of the offence. The Supreme Court held that a trial court ought to consider the following before passing sentence:-

a. Age of the offender,

b. Whether or not the offender is a first offender,

c. Whether the offender pleaded guilty,

d. The character and record of the offender,

e. Commission of the offence in response to gender-based violence,

f. Remorsefulness of the offender,

g. The possibility of reform and social re-adaptation of the offender,

h. Any other factor that the court considers relevant.

39. The Court of Appeal has also recently applied the same principle in Evans Wanjala Wanyonyi -vs- Republic [2019] eKLR, Christopher Ochieng -vs- Republic [2018] eKLR in holding that the mandatory minimum sentences deprive courts of their legitimate jurisdiction to exercise discretion not to impose these sentences where circumstances dictate otherwise. The only caution to be taken by the court is that such discretion must be exercised judiciously and not capriciously. The trial court must subject its mind to sound legal principles and take account of all relevant factors while eschewing extraneous or irrelevant factors. An appellate court will therefore only interfere with sentence where it is shown that the sentence imposed is either illegal or is either too harsh or too lenient in the circumstances of the case. See Francis Muthee Mwangi -vs- Republic [2016] eKLR.

40. In Fatuma Hassan Sato -vs- Republic [2006] eKLR, Makhandia-J. (as he then was) observed:-

“Sentencing is a matter for the discretion of the trial court. The discretion must however be exercised judiciously. The trial court must be guided by evidence and sound legal principles. It must take into account all relevant factors and exclude all extraneous factors…….”

41. The Sentencing Policy Guidelines for the judiciary stipulate that:-

“…….The sentencing process, which entails the exercise of judicial discretion, must be in accord with the Constitution, as embodied in the judiciary’s overall mandate of ensuring access to justice for all. These guidelines are in recognition of the fact that while judicial discretion remains sacrosanct, and a necessary tool, it needs to be guided and applied in alignment with recognized principles, particularly fairness, non-arbitrariness in decision making, clarity and certainty of decisions. The guidelines are therefore an important reference tool for Judges and Magistrates that will enable them to be more accountable for their sentencing decision.”

42. In Michael Kathewa Laichena & Another -vs- Republic [2018] eKLR, a case expounding on the sentencing guidelines, the court stated:-

“The sentencing policy guidelines, 2016 (“The Guidelines”) published by the Kenya judiciary provided a four tier methodology for determination of a custodial sentence. The starting point is establishing the custodial sentence under the applicable statute. Second, consider the mitigating circumstances or circumstances that would lessen the term of the custodial sentence. Third, aggravating circumstances will go to increase the sentence. Fourth, weigh both aggravating and mitigating circumstances. Since the guidelines did not take into account the fact the death penalty would be declared unconstitutional, the court in the Muruatetu Case (Supra para. 71), held considered mitigating factors that would be applicable in re-sentencing in  a case of murder as follows; (a) age of the offender; (b) being a first offender; (c) whether the offender pleaded guilty; (d) character and record of the offender; (e) commission of the offence in response to gender-based violence; (f) remorsefulness of the offender; (g) the possibility of reform and social re-adaptation of the offender; (h) any other factor that the court considers relevant.”

43. The Sentencing Guidelines thus provide a framework within which the courts can exercise their discretion in a manner that is objective impartial, accountable, transparent and intended to enhance the delivery of justice and public confidence in the judiciary.

44. Under section 216 of the Criminal Procedure Code, the court may before passing sentence or making an order against an accused person under section 215 receive such evidence as it thinks fit  in order to inform itself as to the sentence or order to be passed or made.

45. Under section 329 of the Criminal Procedure Code:

“The court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence.”

46. In brief, the objective of sentencing as provided under the Judiciary of Kenya sentencing  Policy Guidelines at paragraph 4. 1 is:-

1. Retribution: to punish the offender for his/her Criminal conduct in a just manner.

2. Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences;

3. Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law abiding person;

4. Restorative justice; to address the needs arising from the criminal conduct such as loss and damages,

5. Community protection: to protect the community by incapacitating the offender:

6. Denunciation: to communicate the community’s’ condemnation of the criminal conduct.

47. In the instant case, the learned trial magistrate imposed the least sentence permissible as provided under section 8 (4) of the Sexual Offences Act, 2006. However, as stated above, the Court of Appeal has since held that the minimum mandatory sentences stipulated by the Sexual Offences should no longer be allowed to stand. This means that courts now have the liberty to consider factors such as but not limited to mitigation from accused person while following the guidelines set by the Supreme Court of Kenya in The Muruatetu Case (above) above and any pre-sentencing reports/statements from victims in deciding the appropriate sentences to the imposed on accused persons convicted of sexual offences.

48. In the present case, after conviction, the respondent stated that the appellant had no previous records meaning this was his first offence. In mitigation, the appellant stated that he had hypertension and ulcers and that his family depended on him. The appellant did not express any remorse for the physical pain and damage he caused to the victim, SIM during and after committing the offence. Considering the circumstances of the case and the mitigation of the appellant, I am of the considered view that a custodial sentence of eight (8) years would be sufficient punishment to enable the appellant learn his lesson, be rehabilitated, and possibly be readapted  into the community.

Conclusion

49. From all the foregoing, I now make the following final orders in this appeal:-

1. The appellant’s appeal on conviction be and is hereby dismissed.

2. The appellant’s appeal on sentence is allowed to the extent that the term of fifteen (15) years imprisonment is set aside in lieu thereof I sentence the appellant to eight (8) years imprisonment with effect from 11th September, 2015.

3. Right of appeal within 14 days.

50. Orders accordingly.

Judgment written and signed at Kapenguria

RUTH  N. SITATI

JUDGE

Judgment delivered, dated and countersigned in open court at Kakamega on this 9th day of October, 2019.

WILLIAM M. MUSYOKA

JUDGE