REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. E009 OF 2024
ALEX WANGILA SITATI……………………………………….APPELLANT
VERSUS
REPUBLIC……………….…………………………………….RESPONDENT
JUDGEMENT
A. Case background
1. The Appellant was charged of the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006. He was convicted and sentenced to 20 years imprisonment for the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars being that on the 11th day of May 2022 at 1800 hours at [Particulars Withheld] village in Cheptais Sub County within Bungoma County he intentionally and unlawfully caused his penis to penetrate the vagina of B.M.M. a child aged 11 years.
3. The appellant pleaded not guilty to the charge whereafter the matter went for trial. Upon conclusion of the trial the appellant was convicted and sentenced to 20 years imprisonment.
B. Appeal
4. Subsequently the Appellant preferred this appeal which the premised on the following grounds :
a. That I am a first offender and remorseful for the offence committed.
b. That this appeal is not against the sentence but merely requesting leniency.
c. That in the circumstances of this case the sentence of 20 years imprisonment is manifestly harsh and excessive.
d. That his family is very poor and his wife is un-employed. He was the sole bread winner to the family and the prolonged sentence subjects them to severe suffering.
e. That may it please this Hon. Court to consider reducing the sentence imposed on humanitarian grounds.
f. That he wishes to raise more grounds at the hearing of his appeal thereof.
5. The appeal was canvassed by way of written submissions. Both parties complied with the Court directive.
6. Having considered the Petition of Appeal and the submission of the parties herein, the only issue for determination is whether this Court should interfere with the sentence as meted out in the lower Court.
7. The Appellant was convicted under the Sexual Offences Act. Section 8(3) of the Act provides:-
1. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
3. A person who commits an offence of defilement with child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
5. In the case Shadrack Kipkoech Kogo - Vs - R., Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus: -
“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered.”
6. The sentence of twenty (20) years that the Trial Court had meted on him was therefore legal and in accordance with the law as PW2 had not attained sixteen (16) years of age.
7. In this instance, the Appellant is an adult and obviously took advantage of an 11-year-old school going girl. The impact of the offence on the minor is both physically and psychological traumatizing. I therefore find that the sentence of twenty (20) years imprisonment that was meted herein is proper and lawful. The same is hereby upheld.
8. On the balance the Appellant’s appeal herein lacks merit and is hereby dismissed.
9. This file is hereby marked as closed
Orders accordingly.
Dated, signed and delivered at Bungoma this 8th day of April 2025.
M.S.Shariff
Judge
In the presence of:
Appellant virtually
Ms Kibet for the Respondent
Diana Court Assistant
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. E009 OF 2024
ALEX WANGILA SITATI……………………………………….APPELLANT
VERSUS
REPUBLIC……………….…………………………………….RESPONDENT
JUDGEMENT
A. Case background
1. The Appellant was charged of the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006. He was convicted and sentenced to 20 years imprisonment for the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars being that on the 11th day of May 2022 at 1800 hours at [Particulars Withheld] village in Cheptais Sub County within Bungoma County he intentionally and unlawfully caused his penis to penetrate the vagina of B.M.M. a child aged 11 years.
3. The appellant pleaded not guilty to the charge whereafter the matter went for trial. Upon conclusion of the trial the appellant was convicted and sentenced to 20 years imprisonment.
B. Appeal
4. Subsequently the Appellant preferred this appeal which the premised on the following grounds :
a. That I am a first offender and remorseful for the offence committed.
b. That this appeal is not against the sentence but merely requesting leniency.
c. That in the circumstances of this case the sentence of 20 years imprisonment is manifestly harsh and excessive.
d. That his family is very poor and his wife is un-employed. He was the sole bread winner to the family and the prolonged sentence subjects them to severe suffering.
e. That may it please this Hon. Court to consider reducing the sentence imposed on humanitarian grounds.
f. That he wishes to raise more grounds at the hearing of his appeal thereof.
5. The appeal was canvassed by way of written submissions. Both parties complied with the Court directive.
6. Having considered the Petition of Appeal and the submission of the parties herein, the only issue for determination is whether this Court should interfere with the sentence as meted out in the lower Court.
7. The Appellant was convicted under the Sexual Offences Act. Section 8(3) of the Act provides:-
1. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
3. A person who commits an offence of defilement with child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
5. In the case Shadrack Kipkoech Kogo - Vs - R., Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus: -
“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered.”
6. The sentence of twenty (20) years that the Trial Court had meted on him was therefore legal and in accordance with the law as PW2 had not attained sixteen (16) years of age.
7. In this instance, the Appellant is an adult and obviously took advantage of an 11-year-old school going girl. The impact of the offence on the minor is both physically and psychological traumatizing. I therefore find that the sentence of twenty (20) years imprisonment that was meted herein is proper and lawful. The same is hereby upheld.
8. On the balance the Appellant’s appeal herein lacks merit and is hereby dismissed.
9. This file is hereby marked as closed
Orders accordingly.
Dated, signed and delivered at Bungoma this 8th day of April 2025.
M.S.Shariff
Judge
In the presence of:
Appellant virtually
Ms Kibet for the Respondent
Diana Court Assistant