The appellant was charged with the offence of attempted defilement contrary to Section 9 (1) of the Sexual Offences Act as read with Section 9 (2) of the Sexual Offences Act No. 3 of 2006.
It was alleged that on the 18 th day of October 2020 at Mukuru kwa Reuben Slums in Industrial Area, within Nairobi County he intentionally and unlawfully attempted to force his penis penetrate the vagina of F.G.E a child of 6 years. The appellant also faced an alternative count of committing an indecent with the child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006.
The accused was tried, convicted and sentenced in respect of the principal count of attempted defilement. The learned trial Magistrate sentenced him to serve 25 years imprisonment on the 16 th day of December 2022.
The appellant aggrieved by the decision of the learned Honorable magistrate filed an undated petition of appeal raising the following grounds:
THAT, the trial court convicted and sentenced the appellant of the offence charged, notwithstanding, prosecution failed to prove case beyond reasonable doubt.
THAT, the trial court convicted and sentenced the appellant of the offence charged, notwithstanding, the prosecution case was riddled with contradictions, inconsistencies and fabricated evidence that resulted in a selective judgment.
THAT, the trial court convicted and sentenced the appellant of the offence charged, notwithstanding, the plausible defence of the appellant was not given due consideration, where his defence was not displaced by the prosecution as required by law in Section 212 of the Criminal Procedure Code.
THAT, the trial court convicted and sentenced the appellant of the offence charged, notwithstanding, the vital ingredients of the offence charged were not proved as stipulated by law.
THAT, I apply for copies of Court proceedings to enable me raise more relevant grounds.
Later, on the 10 th of January 2025 the appellant filed amended grounds of appeal together with submissions.
It is important to replicate the face of the amended grounds of appeal so as to contextualize the decision of this court on the appeal.
“My Lord, after receivership of the court proceedings and the perusal of the same and after owing the circumstances of the offence, the appellant has opted to abandon the appeal against conviction and sentence and pleads to this honorable court to consider appeal against sentence of 25 years. I do hereby beg leave this honorable court to substitute the former grounds filed there inter-alia in compliance with Section 350 (v) of the C.P.C in the following grounds:-
1. THAT, the sentence that was imposed is too harsh and excessive
2. THAT, may this Honorable Court be pleased to grant a sentence that it will deem fit and reasonable in circumstances of promoting the appellant's rehabilitation and transformation while in custody.
3. THAT, may this Honorable Court be pleased to find the time already served. in custody from the date of arrest being as sufficient punishment for the offence that was committed to meet the requirement of Section 333 (2) of the C.P.C Cap 75 laws of Kenya.
4. THAT, this Honorable Court be pleased to place the appellant under any other alternative supervisory for the reminder of the sentence under Section 35 (1) of the penal code.
5. THAT, this honorable court be pleased to grant any other order that shall be deemed fair in the interest of justice.
6. THAT, may this honorable court invoke on Section 354(3)(b) of the Criminal Procedure Code which clothes this court with the powers to entertain an appeal on sentence where on its part describes as follows:”
It is clear from the amended grounds that all that the appellant wishes this court to do is to consider his appeal on sentence. Sentencing is matter of exercise of judicial discretion. A court sitting on appeal is therefore minded to follow the principles set out in the celebrated case of Mbogo v Shah [1968] EA page 93 in which De Lestang VP (as he then was) observed at page 94 as follows;-
“I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion."
Section 9 (2) of the Sexual Offences Act provides:
“ A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term not less than 10 years.”
The appellant in this matter was sentenced to serve 25 years imprisonment. The court in sentencing the accused stated: “ the accused has not shown an remorsefulness for what he did and still believes that the victim’s father is to blaim for this incident for being a promiscuous man and being in relationships with women that neither he nor his extended family approved.” The learned honorable magistrate clearly considered the mitigation of the appellant thus in arriving at the decision to sentence him to 25 years imprisonment, that exercise of discretion cannot be faulted.
This court has perused the record and in it is a report dated 19 th October 2021 by one Samson Ngore Probation officer Makadara. The report indicates in the personal history section that the appellant admitted to having been jailed previously for 2 years in Kisii and served 16 months for trafficking of bhang. Further, the report reads: “he says that he was a social drinker of alcohol and he used to smoke bhang”. The character of the appellant is one that this court must seriously consider in deciding whether he is fit for reduction of sentence as he has pleaded.
This court has agonized over this matter and has come to the conclusion that doing the best it can in the circumstances, the sentence by the learned Honorable Magistrate is reviewed purely on account of the court having failed to take into account the provisions of Section 333(2) of the Criminal Procedure Code. The appellant was in custody throughout the trial and as such he was entitled to credit for the period he had remained in remand.
The court did not consider that fact and on that ground alone this court finds that the decision on sentence is reviewable to that extent.
The period of 25 years is to be computed from the date of arrest being 18 th October 2020.
The sentence of 25 years is lawful and therefore upheld.
It is so ordered.
It was alleged that on the 18 th day of October 2020 at Mukuru kwa Reuben Slums in Industrial Area, within Nairobi County he intentionally and unlawfully attempted to force his penis penetrate the vagina of F.G.E a child of 6 years. The appellant also faced an alternative count of committing an indecent with the child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006.
The accused was tried, convicted and sentenced in respect of the principal count of attempted defilement. The learned trial Magistrate sentenced him to serve 25 years imprisonment on the 16 th day of December 2022.
The appellant aggrieved by the decision of the learned Honorable magistrate filed an undated petition of appeal raising the following grounds:
THAT, the trial court convicted and sentenced the appellant of the offence charged, notwithstanding, prosecution failed to prove case beyond reasonable doubt.
THAT, the trial court convicted and sentenced the appellant of the offence charged, notwithstanding, the prosecution case was riddled with contradictions, inconsistencies and fabricated evidence that resulted in a selective judgment.
THAT, the trial court convicted and sentenced the appellant of the offence charged, notwithstanding, the plausible defence of the appellant was not given due consideration, where his defence was not displaced by the prosecution as required by law in Section 212 of the Criminal Procedure Code.
THAT, the trial court convicted and sentenced the appellant of the offence charged, notwithstanding, the vital ingredients of the offence charged were not proved as stipulated by law.
THAT, I apply for copies of Court proceedings to enable me raise more relevant grounds.
Later, on the 10 th of January 2025 the appellant filed amended grounds of appeal together with submissions.
It is important to replicate the face of the amended grounds of appeal so as to contextualize the decision of this court on the appeal.
“My Lord, after receivership of the court proceedings and the perusal of the same and after owing the circumstances of the offence, the appellant has opted to abandon the appeal against conviction and sentence and pleads to this honorable court to consider appeal against sentence of 25 years. I do hereby beg leave this honorable court to substitute the former grounds filed there inter-alia in compliance with Section 350 (v) of the C.P.C in the following grounds:-
1. THAT, the sentence that was imposed is too harsh and excessive
2. THAT, may this Honorable Court be pleased to grant a sentence that it will deem fit and reasonable in circumstances of promoting the appellant's rehabilitation and transformation while in custody.
3. THAT, may this Honorable Court be pleased to find the time already served. in custody from the date of arrest being as sufficient punishment for the offence that was committed to meet the requirement of Section 333 (2) of the C.P.C Cap 75 laws of Kenya.
4. THAT, this Honorable Court be pleased to place the appellant under any other alternative supervisory for the reminder of the sentence under Section 35 (1) of the penal code.
5. THAT, this honorable court be pleased to grant any other order that shall be deemed fair in the interest of justice.
6. THAT, may this honorable court invoke on Section 354(3)(b) of the Criminal Procedure Code which clothes this court with the powers to entertain an appeal on sentence where on its part describes as follows:”
It is clear from the amended grounds that all that the appellant wishes this court to do is to consider his appeal on sentence. Sentencing is matter of exercise of judicial discretion. A court sitting on appeal is therefore minded to follow the principles set out in the celebrated case of Mbogo v Shah [1968] EA page 93 in which De Lestang VP (as he then was) observed at page 94 as follows;-
“I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion."
Section 9 (2) of the Sexual Offences Act provides:
“ A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term not less than 10 years.”
The appellant in this matter was sentenced to serve 25 years imprisonment. The court in sentencing the accused stated: “ the accused has not shown an remorsefulness for what he did and still believes that the victim’s father is to blaim for this incident for being a promiscuous man and being in relationships with women that neither he nor his extended family approved.” The learned honorable magistrate clearly considered the mitigation of the appellant thus in arriving at the decision to sentence him to 25 years imprisonment, that exercise of discretion cannot be faulted.
This court has perused the record and in it is a report dated 19 th October 2021 by one Samson Ngore Probation officer Makadara. The report indicates in the personal history section that the appellant admitted to having been jailed previously for 2 years in Kisii and served 16 months for trafficking of bhang. Further, the report reads: “he says that he was a social drinker of alcohol and he used to smoke bhang”. The character of the appellant is one that this court must seriously consider in deciding whether he is fit for reduction of sentence as he has pleaded.
This court has agonized over this matter and has come to the conclusion that doing the best it can in the circumstances, the sentence by the learned Honorable Magistrate is reviewed purely on account of the court having failed to take into account the provisions of Section 333(2) of the Criminal Procedure Code. The appellant was in custody throughout the trial and as such he was entitled to credit for the period he had remained in remand.
The court did not consider that fact and on that ground alone this court finds that the decision on sentence is reviewable to that extent.
The period of 25 years is to be computed from the date of arrest being 18 th October 2020.
The sentence of 25 years is lawful and therefore upheld.
It is so ordered.