Onkoba v Republic [2023] KEHC 26290 (KLR)

Onkoba v Republic (Criminal Appeal E009 of 2023) [2023] KEHC 26290 (KLR) (5 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26290 (KLR)

Republic of Kenya

In the High Court at Kisii

Criminal Appeal E009 of 2023

KW Kiarie, J

December 5, 2023

Between

Jared Bosire Onkoba

Appellant

and

Republic

Respondent

(From the original conviction and sentence in S.O. case NO. E034 of 2022 of the Chief Magistrate’s Court at Kisii by Hon. W. Kugwa-Resident Magistrate)

Judgment

1. Jared Bosire Onkoba, the appellant herein, was convicted of the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act No. 3 0f 2006.

2. The particulars of the offence are that on the 18th day of June 2022 at Kitutu Central sub-County within Kisii County, he intentionally and unlawfully caused his penis to penetrate the vagina of EMM, a child aged twelve years.

3. The appellant was sentenced to twenty years’ imprisonment. He was aggrieved and filed this appeal against the sentence. He was in person and raised the following grounds of appeal:a.That he regrets the involvement in this matter something that has affected him mentally and psychologically.b.That the mandatory sentence meted was unconstitutional.c.That the sentence is excessive.

4. The appeal was opposed by the state through Mr. Justus Ochengo, learned counsel on the ground the sentence meted out was the minimum provided for.

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 with the sentence of the trial court only where there exists, to a sufficient extent, circumstances entitling it to vary the order of the trial court. These circumstances were well illustrated in the case of Nillson 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 Vs. 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 Vs. Shershewsity (1912) C.CA 28 T.LR 364.

7. Section 8 (3) of the Sexual Offences Act provides:A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.

8. I am aware that there are decisions that have pronounced that the minimum sentence prescription is unconstitutional. However, without the parliament acting to rectify the anomaly, courts cannot prescribe sentences other than the ones in the Act for this would be tantamount to interfering with the legislative docket. This may create judicial anarchy.

9. The sentence meted is legal and I accordingly dismiss the appeal.

Delivered and signed at Kisii this 5th day of December 2023KIARIE WAWERU KIARIEJUDGE