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JudgmentJOSEPHAT BUNDUKI ONSONGO VS The Republic8 min read

JOSEPHAT BUNDUKI ONSONGO VS The Republic

High Court at Nyamira High Court · · Wilfrida A. Okwany

(Being an Appeal from the Judgement and Sentence of the Chief Magistrate’s Court at Nyamira (SO) No. 16 of 2021 delivered by C.W. Waswa, Resident Magistrate on 26th July 2022)

  1. The Appellant herein was charged with the offence of rape contrary to Section 3 of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on the 1st day of January 2021 at Sakwa village, Gekonge Sub-location in Nyamira North Sub-County within Nyamira County intentionally and unlawfully caused his penis to penetrate the vagina of Josephine Basweti Onserio without her consent.
  2. The Appellant also faced the alternative charge of committing an indecent act with an adult contrary to Section 11A of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on the 1st day of January 2021 at Sakwa village, Gekonge Sub-location in Nyamira North Sub- County within Nyamira County intentionally touched the vagina of Josephine Basweti Onserio with his penis against her will.
  3. The Appellant faced a second count of assault causing actual bodily harm contrary to Section 251 of the Penal Code. The particulars of the second count were that on the 1st day of January 2021 at Sakwa village, Gekonge Sub-location in Nyamira North Sub- County within Nyamira County unlawfully assaulted Evans Onserio thereby occasioning him actual bodily harm.
  4. The Appellant pleaded not guilty to all the charges and a trial ensued in which the prosecution presented the evidence of 5 witnesses as follows: -
  5. PW1, Evans Onserio, the victim’s son and the complainant in the second count, heard screams from his mother’s house on the night of 1st January 2021. He went out to check what was happening only to meet the Appellant emerging from his mother’s house. PW1 stated that the Appellant  was armed with a panga which he used to hit him on the head. He was escorted to the hospital alongside his mother who informed him that the Appellant had raped her.
  6. PW2, Richard Mireri, also the victim’s son, also heard his mother screaming on the material night. He went to his mother’s house where he found PW1 bleeding from the head while his mother was crying and saying that Bunduki had finished her.
  7. PW3, Josephine Basweti, the victim herein was sleeping in her house on the night of 1st January 2021 when the Appellant tapped at her window before storming into her house where he held her by the neck and raped her. She raised an alarm and her sons PW1 and PW2 came to her rescue. She was escorted to the hospital and later reported the incident to Magwagwa Police Station.
  8. PW4, No. 116408 P.C. Solomon Mwirigi, was the Investigating Officer who took over the case from P.C. Simon Mogambi in August 2021. He testified that the police received a report that Appellant broke into the victim’s through the window and attacked her with a panga and a blunt metal before raping her. He testified that the Appellant’s house was torched by irate members of the public and that the Appellant escaped with minor injuries after he was rescued by Police Officers from Ekerenyo Police Station.
  9. PW5, Mr. Evans Atika, was the Clinical Officer who examined PW3 He testified that she had pain in her vaginal walls and other parts of her body and that the age of the injuries was 2 days old. He produced the P3 Form (P.Exh1) the Outpatient Card (P.Exh2) and the PRC Form (P.Exh4) and Treatment Notes (P.Exh5).
  10. PW5 further testified that PW1 Evans Onserio was examined on 3rd January 2021 and had a stitched wound on the head and bruises above the left eye with a swelling on the head. He testified that the age of the injuries was 3 days and that the degree of injury was harm. He produced the P3 Form (P.Exh6), the Outpatient Card (P.Exh7) and the Treatment Notes (P.Exh8).

The Defence/Appellant’s case

  1. At the close of the Prosecution’s case, the Appellant was placed on his defence. He elected to tender sworn evidence and did not call any  witnesses. He testified that he was at home on the night of 2nd January 2021 when unknown persons knocked at his door be stated that he sustained burns on his entire body but that he managed to escape. He later saw PW1 with whom he had prior disagreements and that he was arrested after which he was admitted at Kinara Hospital for a month. He denied the allegation that he had committed the offences in question.
  2. At the end of the trial, the trial court convicted the Appellant on the main charge in the first count and the second count. He was then sentenced to serve 20 years’ imprisonment for the first count and 5 years for the second count. The sentences were to run concurrently.

The Appeal

  1. The Appellant was dissatisfied with the trial court’s decision and appealed against the sentence through a homemade Petition of Appeal in which he listed ten grounds of Appeal as follows: -
  2. THAT the Appellant is serving a sentence of 20 years imprisonment for the offence of rape contrary to Section 8 (1) (3) (sic) of the Sexual Offences Act No. 3 of 2006.
  3. THAT the Appellant is remorseful and prays that the sentence that was awarded upon (sic) be reduced to a lesser jail term since the sentence imposed was excessive and deterrent.
  4. THAT the Appellant was not against the current conviction of 20 years imposed on him.
  5. THAT the Appellant is remorseful and apologetic to the happenings.
  6. THAT the Appellant has suffered a very serious health problem following the attacks that were caused on him by the complainant’s siblings at his home.
  7. THAT the complainant’s children took the law into their hands and burnt down the applicant’s house and everything in his house got burnt. The fire affected the applicant’s whole body which has turned him a (sic) disabled.
  8. THAT the appellant family i.e. wife and children are languishing and suffering since the house was completely destroyed by burning.
  9. THAT the appellant needs a very serious operation on his right leg and right hand as per the medical examination records from KTRH Kisii as a result the appellant uses his left side of his body when sleeping.
  10. THAT the appellant herein is humbly requesting this court to be lenient and reduce the sentence of 20 years which was imposed on him to any manageable sentence in order to allow him to seek medication.
  11. THAT the Appellant is using ARV drugs as he is a HIV victim hence he is now praying and requesting the honourable court to reduce the sentence that was meted against him.
  12. The Appeal was canvassed by written submissions which I have read and considered.
  13. Even though this Appeal is only on sentence, I am still minded to consider the duty of a first the 1st Appellate court as was stated by the Court of Appeal in Gabriel Kamau Njoroge –vs- Republic [1982 – 88] 1 KAR 1134 where it was held thus: -

“It is the duty of the first Appellate court to remember that parties are entitled to demand of the court of first appeal a decision on both questions of fact and of law and the court is required to weigh conflicting evidence and draw its own inferences and conclusions, bearing in mind always that it has neither seen or heard the witnesses and make due allowance for this.”

  1. The only issue for my determination is whether the sentences meted on the Appellant were legal and appropriate.

Analysis and Determination

  1. Section 3 of the Sexual Offences Act stipulates as follows: -

(1) A person commits the offence termed rape if—

(a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;

(b) the other person does not consent to the penetration; or

(c) the consent is obtained by force or by means of threats or intimidation of any kind.

(2)__________

(3) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.

  1. It is trite that sentencing is the discretion of the trial court. In the case of Wanjema vs. Republic (1971) E.A. 493 the Court of Appeal in stated as follows:-

“An appellate court should not interfere with the discretion which a trial court has exercised as to the sentence unless it is evident that it overlooked some material factors, took into consideration some immaterial fact, acted on wrong principle or the sentence is manifestly excessive in the circumstances of the case.”

  1. In Shadrack Kipchoge Kogo vs. Republic, Criminal Appeal No. 253 of 2003, the Court of Appeal held thus:-

“Sentence is essentially an exercise of the trial court and for this court to interfere, it must be shown that in passing the sentence, the court took into account an irrelevant factor or that a wrong principle was applied or short of those the sentence was so harsh and excessive that an error in principle must be inferred.”

  1. In the present case, I note that the trial court considered the Appellant’s mitigation alongside the nature of the offence and the age of the victim who was an elderly (68-year-old) woman before arriving at the sentences on the two counts. The trial court arrived at the verdict that the facts of the case called for the passing of a deterrent sentence.
  2. The first charge of rape attracts a minimum imprisonment term of 10 years which may be enhanced to life while the second charge is premised on Section 251 of the Penal Code which stipulates as follows: -

251. Assault causing actual bodily harm

Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.

  1. I note that the trial court sentenced the Appellant as provided under Section 251 of the Penal Code while the sentence in the main charge on the first count is also in accordance with the law. I accordingly find no reason to interfere with the sentences passed by the trial court.
  2. The only consideration that this Court will make is to order that the sentences should be computed from the date of the Appellant’s arrest in accordance with the provisions of Section 333 (2) of the Criminal Procedure Code.
  3. In the final analysis, I find that the appeal on sentence is merited and succeeds, albeit partly, only in respect to the computation of the sentence period which shall run concurrently from the date of the Appellant’s arrest.
  4. It is so ordered.


    JOSEPHAT BUNDUKI ONSONGO VS The Republic JOSEPHAT BUNDUKI ONSONGO VS The Republic