Skip to content
JudgmentDUBE ASHAKO DELA VS The Republic7 min read

DUBE ASHAKO DELA VS The Republic

High Court at Garsen High Court · · M Thande

 

  1. The Appellant herein was tried and convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act (SOA). The particulars of the offence were that on 1.3.17, at Bisadi area of Asha Kone location, in Tana delta sub-county, Tana River County, the Appellant intentionally and unlawfully caused his penis to penetrate the anus of Jamal Ware Worabo, (the Complainant) a boy of 13 years. Upon conviction, the Appellant was sentenced to serve a term of 20 years imprisonment. 
  2. Being aggrieved by the decision of the trial court, the Appellant has appealed to this Court against both the conviction and sentence. The summarized grounds of appeal are that the trial court erred in law and fact by:
  3. failing to consider that the prosecution did not prove their case beyond reasonable doubt.
  4. failing to consider sharp contradictions by the prosecution.
  5. failing to consider both conviction and sentence were against the weight of evidence adduced by the prosecution.
  6. failing to adequately consider his defence. 

  1. The Appellant urged the Court to allow the Appeal quash the conviction and set aside the sentence.
  2. As a first appellate Court, I have subjected the evidence adduced before the trial magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial Court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32.

  1. The brief facts of this case according to the prosecution, as can be gleaned from the record are that the Complainant was at the material time aged 15 years. On 1.3.17, the Complainant was grazing cattle when the Appellant came and beat him. He then took the Complainant to a place called Hindasa, pulled off his clothes and inserted his penis into the Complainant’s anus 3 times. The Complainant reported the matter to Mohamed Swaleh. The appellant was arrested the following day. The Complainant was taken to Garsen Health Centre on 3.3.17 where he was examined by PW5 Buya Said Shevo, a clinical officer. He was found to have bruises on his anus and his anal sphincter was loose. The Appellant was later charged with the offence of defilement. Following trial, he was convicted of the offence and sentenced to 20 years imprisonment.
  2. I have considered the submissions filed by the Appellant and the Respondent.
  3. The Appellant submitted that mandatory sentences for sexual offences have been declared unconstitutional. He cited several authorities including Mombasa Constitutional Petition No. 97 of 2021 Edwin Wachira & others v Republic and Constitutional Petition No. E017 of 2021 Phillip Mueke Maingi 7 Others v the DPP. The Appellant urged the Court to find that the mandatory minimum 20 years sentence was manifestly harsh and excessive. He urged the Court to reduce the sentence to a least severe prescribed sentence from the date of his arrest.
  4. The Appellant further urged the Court to find that the conviction and sentence were proper but to consider the case holistically and find that the time already served since his arrest would be sufficient. Further that the Appeal be allowed and the sentence be replaced with a lenient sentence.
  5. The Respondent opposed the Appeal and submitted that the case was proved beyond reasonable doubt. The Respondent submitted that the age of the Complainant was proved by means of an age assessment indicating that he was 13 years old at the time the offence was committed. Further that penetration was proved by the Complainant’s testimony that the Appellant sodomized him 3 times. Further that PW5 confirmed that the Complainant had visible bruises in his anus and his anal sphincter was loose. Additionally, that the Appellant was identified given that he is a distant relative and therefore known to the Complainant. The Respondent further submitted that upon conviction, the Appellant was sentenced to 20 years imprisonment as stipulated in Section 8(3) of the SOA.
  6. Although the Appellant appealed against both conviction and sentence, his submissions were confined to his sentence which he termed harsh and excessive. Indeed, he conceded that the conviction and sentence were proper but appealed to the Court to reduce the sentence or substitute therefor, a sentence that is lenient. He further contended that the mandatory minimum sentences in the SOA are unconstitutional.
  7. The offence of defilement carries mandatory minimum sentence, depending on the age of the victim. The Complainant herein was aged 13 years according to the age assessment report dated 31.5.17 on record. In relation to defilement of a child aged between 12 and 15 years, Section 8(3) of the SOA provides as follows:

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.

  1. The challenge to the mandatory nature of the minimum sentences under the SOA has been the subject of endless judicial consideration in our superior courts. In the recent case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment), the Supreme Court put this convoluted matter to rest. The respondent in that case had been charged with and convicted of the offence of defiling a 15 year old child, contrary to Section 8(1) as read with Section 8(3) of the SOA. The trial court imposed the mandatory minimum sentence of 20 years imprisonment, which was upheld by the High Court on appeal. The Court of Appeal however declared the sentence unconstitutional, set it aside and substituted therefor, a sentence of 15 years. The matter then went to the Supreme Court.  
  2. In its judgment overturning the decision of the Court of Appeal, the Supreme Court stated:

66. We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.

67.  This is why, even in the Muruatetu case, this Court was keen to still defer to the Legislature as the proper body mandated to legislate.

  1. The mandatory minimum sentences in the SOA were fixed by Parliament in exercise of its legislative mandate to set the parameters of sentencing for each crime. The sentences set are lawful and it is for the courts to impose the same upon conviction. In saying so, I am guided by the following words of the Supreme Court in the cited decision:

68. Our findings hereinabove effectively lead us to the conclusion that the judgment of the Court of Appeal delivered on 7th October, 2022 is one for setting aside. In any case, the sentence imposed by the trial court against the Respondent and affirmed by the first appellate court was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence.

  1. The decision of the Supreme Court is binding on this Court. Accordingly, the prayers sought by the Appellant on the mandatory nature of the sentence cannot issue.
  2. The Court notes that the Appellant was arrested on 3.3.17 and remained in custody until 8.2.18 when he was sentenced.
  3. Section 333(2) of the Criminal Procedure Code provides as follows:

Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.

Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

  1. The proviso to Section 333(2) of the Criminal Procedure Code obligates the court to take into account the period an accused spent in custody pending trial. There is no mention by the trial court that the period that the Applicant had spent in custody pending trial, was taken into account when sentencing him. This is a serious omission on the part of the trial court, as it amounts to non-compliance with an express statutory provision.
  2. In the end, after reevaluating the evidence, my finding is that the Appellant was properly convicted and sentenced. Accordingly, both the conviction and sentence are upheld save that the sentence shall run from 3.3.17 when the Appellant was arrested. 

DATED, SIGNED and DELIVERED in MALINDI this 13th day of December 2024

 

    DUBE ASHAKO DELA VS The Republic DUBE ASHAKO DELA VS The Republic