Katana Kitsan Gona v Republic [2017] KEHC 731 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

CRIMINAL APPEAL  NO. 90 OF 2013

KATANA KITSAN GONA............................APPELLANT

VERSUS

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

JUDGEMENT

The appellant was charged with unnatural offence Contrary to Section 162(b) of the Penal Code.  The  particulars of the offence were that the appellant on the 25th of November 2013 at Dabaso village, Gede location within Kilifi County had carnal knowledge of a goat. The appellant pleaded guilty and was sentenced to serve ten (10) years imprisonment.

The grounds of appeal are that are:-

1. The appellant saved Judicial time by pleading guilty to the charge

2. The appellant has served a substantial part of the  sentence

3. The appellant is a first offender

4. The sentence is harsh ad he is remorseful.

In his submission the appellant submit that he has learnt from his mistakes.  The time he has spent in custody has taught him a lesson.  He is a first  offender and is very remorseful.

The state opposed the appeal. Mr. Fedha, prosecution counsel, submit that the appellant pleaded guilty. The facts were read over to the appellant. Exhibits were produced and the appellant was convicted on his own plea of guilty. The conviction is safe.

The record shows that the plea was taken on 27. 11. 2013. The appellant pleaded guilty.  The file was taken to another  magistrate on 28. 11. 2017 who had the charge read again to the appellant and he pleaded guilty.  The facts were read over and the appellant pleaded guilty.  The trial court allowed the appellant to mitigate.  I do find that the plea is unequivocal and the appellant willingly pleaded guilty to the charge.

Basically the appellant is contending that the  sentence is harsh or excessive. Under section 162(b) the punishment provided for the offence is fourteen years. That is the maximum sentence.  The appellant told the court that he is a first offender.  He is  remorseful.  He has  a disabled wife at home and he takes care of her.  The appellant was sentenced to serve ten (10) years in November, 2013. He has now served over 3 ½  years in prison.  Taking the circumstances of the case and the fact that the appellant pleaded guilty, I do find that the period already served in prison is enough punishment.  I do agree that the sentence is excessive.  I do set aside the ten (10) years imprisonment and replace it with the period  already served.

In the end, the  appeal on conviction is disallowed.  The appeal on sentence is allowed.  The sentence is hereby set  aside and replaced with the period already served.  The appellant shall be set at liberty unless otherwise lawfully held.

Dated and signed at Marsabit this…… day of...….. 2017

SAID CHITEMBWE

JUDGE

Dated and Delivered at Malindi this  6th day of  December, 2017

WELDON KORIR

JUDGE