Nyamache v Republic [2023] KEHC 26285 (KLR)

Nyamache v Republic (Criminal Appeal E008 of 2023) [2023] KEHC 26285 (KLR) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26285 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Appeal E008 of 2023

KW Kiarie, J

December 7, 2023

Between

Samuel Marasa Nyamache

Appellant

and

Republic

Respondent

(From the original conviction and sentence in Criminal Sexual Offences Case NO. E083 of 2021 of the Chief Magistrate’s Court at Kisii by Hon. C.A. Ogweno–Senior Resident Magistrate)

Judgment

1. Samuel Marasa Nyamache, the appellant herein, was convicted of the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act.

2. The particulars of the offence are that on the 21st day of November 2021 in Kisii South sub-County within Kisii County, intentionally caused his penis to penetrate the vagina of SKN a child aged 11 years who is mentally challenged.

3. The appellant was sentenced to forty years’ imprisonment. He was aggrieved and filed this appeal against the sentence. He raised grounds of appeal as follows:a.That the appellant was sentenced to serve 40 years imprisonment having been found guilty of the offence of defilement contrary to section 8(1) (2) of the Sexual Offences Act.b.That the appellant is remorseful.c.That the appellant does not dispute what is on record but prays for a lesser sentence.

4. The appeal was opposed by the state through Mr Justus Ochengo. Learned counsel. His grounds were as follows:a.That the sentence did not exceed the maximum penalty; andb.That the sentence was appropriate in the circumstances of the case.

5. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32.

6. An appellate court would interfere only where there exists, to a sufficient extent, circumstances entitling it to do so. Nelson vs Republic [1970] E.A. 599 as follows:The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does 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 will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v Rex (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor! To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R v Shershewsity (1912) C.CA 28 T.LR 364.

7. Section 8 (2) of the Sexual Offences Act Provides as follows:A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

8. I have looked at the record and I have no reason to interfere with the sentence. The appellant must count himself lucky for the prosecution did not issue him with an Enhancement Notice.

9. Considering the prescribed sentence and the fact that the sentence cannot be claimed to be harsh. I find that the appeal lacks merit. The same is dismissed.

DELIVERED AND SIGNED AT HOMA BAY THIS 7THDAY OF DECEMBER 2023KIARIE WAWERU KIARIEJUDGE