Juma v Republic [2024] KEHC 3190 (KLR)

Juma v Republic (Criminal Appeal E038 of 2023) [2024] KEHC 3190 (KLR) (5 April 2024) (Judgment)

Neutral citation: [2024] KEHC 3190 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal E038 of 2023

AC Mrima, J

April 5, 2024

Between

Dacklus Wabwire Juma

Appellant

and

Republic

Respondent

(Appeal arising out of the re-sentencing by Hon. S. N. Makila (Principal Magistrate) in Kitale Chief Magistrate’s Court Sexual Offence Case No. 221 of 2018 delivered on 22{{^nd}} December, 2021)

Judgment

1. Dacklus Wabwire Juma, the Appellant herein, was charged, tried and convicted of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the offence were that on 28th December, 2018 at Ngasi village within Trans Nzoia County, the Appellant intentionally and unlawfully caused his penis to penetrate into the vagina of P.A.K., a child aged 5 years old.

2. The Appellant faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the offence were that on 28th December, 2018 at Ngasi village within Trans Nzoia County, caused contact between his penis and the vagina of P.A.K., a child aged 5 years old.

3. On conviction on the main charge of defilement, the Appellant was sentenced to serve life imprisonment. That was on 6th May, 2019.

4. He later filed a Constitutional Petition No. E129 of 2023 (Formerly a Misc. Criminal Application) which was allowed and the life sentence was set-aside. The Appellant was ordered to be re-sentenced.

5. On 13th April 2023, the Appellant was re-sentenced to serve a term of 30 years in prison, hence, the instant appeal.

6. The appeal herein is basically on sentence.

7. The appeal was opposed.

8. The Court in Wanjema v. Republic (1971) EA 493 laid down the general principles upon which the first appellate Court may act on when dealing with an appeal on sentence. An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact or that it considered an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate Court must not lose sight of the fact that in sentencing, the trial Court exercised discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion.

9. I have considered this matter with caution and care. The trial Court was careful in the manner it conducted the sentencing proceedings.

10. The Court considered the nature of the offence and the mitigation, among other relevant actors.

11. Sentencing is a crucial part in the criminal process and the administration of justice. It is also discretionary. In exercising the discretion, a sentencing Court is called upon to be guided by a raft of considerations. Such are discussed at length in the Sentencing Guidelines published on 29th April, 2016 vide Gazette Notice No. 2970 by the Hon. The Chief Justice of the Republic of Kenya who is also the Chairperson of the National Council on the Administration of Justice (NCAJ) and in case law including the Supreme Court in Petition No. 15 of 2015 Francis Karioko Muruatetu & another v Republic [2017] eKLR.

12. This Court does not see how the sentencing proceedings are to be impugned. This Court, however, posits that it would have been more assuring for the Court to have called for a Pre-Sentence Report given the gravity of the offence and the possible sentence. Although that did not happen, given the nature of the offence and the age of the victim, the sentence rendered cannot be faulted.

13. Therefore, the appeal on sentence hereby fails.

14. In the end, the following final orders of this Court do hereby issue: -a.The entire Appeal is dismissed.b.This file is hereby marked as CLOSED.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 5TH DAY OF APRIL, 2024. A. C. MRIMAJUDGEJudgment delivered in open Court and in the presence of: -Dacklus Wabwire Juma, the Appellant in person.Miss Kiptoo, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Respondent.Chemosop/Duke – Court Assistants.Judgment – Kitale High Court Criminal Appeal No. E038 of 2023 Page 3 of 3