Background
1. The Appellant herein, Joram Onyango Gwala, was charged and convicted of Rape contrary to Section 3(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that on the 6th of August, 2020 around 1900hrs in Kit Mikayi village, Sem Sub-County within Kisumu County, intentionally and unlawfully caused his penis to penetrate the vagina of RAO by use of force.
2. The Appellant also faced an alternative charge of committing an indecent act with an adult contrary to Section 11 (A) of the Sexual Offences Act, Act No. 3 of 2006, the particulars being that on the 6th of August, 2020 around 1900hrs in Kit Mikayi village, Sem Sub-County within Kisumu County, intentionally touched the vagina of Rose Anyango Okona with his penis against her will.
3. Before the trial court, the Appellant denied committing the offence. The Prosecution presented its evidence through six witnesses. The Appellant was put on his evidence and elected to give sworn evidence but did not call any witness.
4. Upon conclusion of the trial, the trial magistrate found the Appellant guilty and accordingly convicted him of rape.
5. He was sentenced to 10 years imprisonment.
The Appeal
6. The Appellant was dissatisfied with the conviction and sentence and lodged an appeal vide his Petition of Appeal dated 15th June 2023, raising the following three grounds of appeal: -
i. That the learned trial magistrate erred both in law and fact by finding and holding that the prosecution had proved their case beyond reasonable doubt.
ii. That the learned trial court failed to consider that the sentence imposed was against the weight of the evidence adduced.
iii. That the trial Court did not consider the circumstances that surrounded the veracity of the offence.
7. The appeal was canvassed by way of written submissions.
Appellant’s Submissions
8. The Appellant, in his written submissions dated 16th January 2024 argued this appeal in the sentence only. The issue of conviction, though listed as a ground of appeal in the Petition of Appeal, has been expressly abandoned by the Appellant in his submissions.
9. On the sentence meted out by the trial court, the Appellant submitted that the trial court, in reaching its decision did not take into account the Appellant’s conduct towards among others, the complainant whom he avoided cross-examining.
10. It was also the Appellant’s position that the trial court before reaching its decision erred by failing to interrogate the circumstances under which the offence took place, including the fact that the Appellant and the Respondent may have been lovers prior to the date of the offence. The Appellant cited the case of Absalom Ambaka Okila vs Rep.(2020) eKLR in support of this argument.
11. Citing the case of Benard Aganda Mayungi vs Rep CR Appeal No.6 of 2020, the Appellant urged this Court to evaluate afresh the circumstances under which the offence took place and find that the same may have been as a result of a deal gone sour or a heartbreak as a result of anticipated separation.
12. The Appellant maintained that the sentence meted out by the trial court amounts to a miscarriage of justice, illegal and unfair. That mandatory minimum sentence such as the one prescribed in section 3(1) of the Sexual Offences Act, has been declared illegal if meted as the only available option as they deny the trial courts power to excise discretion leading to Unfair Trial by discriminating upon the accused persons as well as treating them as unequal before the law. The Appellant cited among others, the case of Jared Koita Injiri v Republic [2019] eKLR in support of this position.
13. The Appellant submitted that the trial court failed to take into account that he was a first offender, nor did the court take into account the probation report which was positive in that the appellant's wife had accepted care and provide for the child.
14. The Appellant asserted that the sentence goes against the principle of proportionality as to the weight of the evidence and the circumstances surrounding the said crime.
15. The Appellant also urged this Court to invoke Section 333(2) of the Criminal Procedure Code and make a pronouncement that the sentence is to run from the date of his arrest, being 10.08.2020.
16. The Appellant therefore prayed that; -
i. The appeal be admitted and allowed as merited.
ii. The sentence of 10 years imprisonment be set aside and (or) be substituted with a very least punitive form of sentence.
iii. The sentence meted by this court to run from the date the Appellant was arrested.
Respondents Submissions
17. The Respondent filed written submissions dated 5th June 2024, the Respondent submitted on both conviction and sentence. However, the instant appeal is only limited to the issue of the sentence meted out by the trial court.
18. On the sentence, the Respondent submitted that the same took into account the circumstances of the offence, including the fact that the Appellant employed force and violence to subdue, threaten, and then rape the victim.
19. The Respondent submitted that the 10-year custodial sentence imposed on the Appellant was appropriate, fair, and justifiable punishment given the overwhelming evidence proving his guilt.
20. Consequently, the Respondent urged this court to find no merit in the appeal, dismiss the same, and uphold the sentence meted out by the trial court.
Analysis and Determination
21. I have considered the appeal and submissions by both parties. I have also read the record of the trial court and the impugned judgment.
22. This being a first appeal, this court is obligated to revisit and re-evaluate the evidence afresh, assess the same, and make its own conclusions, bearing in mind that, unlike the trial court, this Court did not have the advantage of hearing and observing the demeanor of the witnesses. (See Okeno v Republic [1972] E.A 32).
23. The Appellant was sentenced to 10 years imprisonment. Section 3 (3) of the Sexual Offences Act provides that the offence of rape is punishable with an imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.
24. In Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions), the Supreme Court outlined the following guidelines as being applicable when the Court was giving consideration to sentencing; -
a) age of the offender;
b) being a first offender;
c) whether the offender pleaded guilty;
d) character and record of the offender;
e) commission of the offence in response to gender-based violence;
f) remorsefulness of the offender;
g) the possibility of reform and social re-adaption of the offender;
h) any other factor that the Court considers relevant.”
25. Further, the sentencing objectives in Kenya have been captured in the Sentencing Guidelines 2023 to be the following: -
i. Retribution: to punish the offender for his/her criminal conduct in a just manner.
ii. Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.
iii. Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law-abiding person.
iv. Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.
v. Community protection: to protect the community by incapacitating the offender.
vi. Denunciation: to communicate the community’s condemnation of the criminal conduct.
vii. Reconciliation: To mend the relationship between the offender, the victim and the community.
viii. Reintegration: To facilitate the re-entry of the offender into the society.
26. From the record of appeal, I note that the Appellant tendered mitigations and were duly considered by the sentencing Court. The court also considered the victim impact assessment report before arriving at its decision on the sentence meted out to the Appellant.
27. The Court in Wanjema v. Republic (1971) EA 493 laid down the general principles upon which the first appellate Court may act on when dealing with an appeal on sentence. An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact that it considered an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate Court must not lose sight of the fact that in sentencing, the trial Court exercised discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion.
28. There is no doubt the offence is serious and indeed inhumane.
29. It is also evident from the record that the Appellant employed force against the complainant in the process of committing the crime.
30. As a result of the offence, the complainant became pregnant and a child was born. The unfortunate events of that day shall forever remain engraved in the mind and be ever-present, not only with the complainant, but the child, who by default, is equally a victim of the crime.
31. There is nothing placed before this Court to the effect that the sentencing Court did not consider a relevant fact or that it considered an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive.
Final Order
32. I therefore find that the sentence is lawful and fair in the circumstances. As a result, the appeal on the sentence fails and is hereby dismissed.
33. It is so ordered.
SIGNED, DATED, AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 20TH DAY OF FEBRUARY 2025
ADO MOSES
JUDGE
In the Presence of: -
C/A………. Moses
………………….for the Appellant
………………for the Respondent