REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E018 OF 2023
KAMWENGA MTEZO MWAHUI………………..APPELLANT
VERSUS
REPUBLIC…………………………………………RESPONDENT
(Being an appeal from the original conviction and sentence in Msambweni Magistrates Court S.O. Case No. E042 of 2019 delivered on 24/5/2023 by Hon. Sandra Ogot, PM)
J U D G M E N T
1. The appellant, Kamwenga Mtezo Mwahui was convicted on the principal charge for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The particulars of offence were that on diverse dates between 19/6/2019 and 1/12/2019 at Manyatta village Mwaluvanga location of Matuga Sub-County within Kwale County he intentionally and unlawfully penetrated the vagina of M.K.K. a child aged 13 years with his penis.
2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the SOA. Particulars being that during the said period and at the same place as in the principal charge, he intentionally touched the vagina of M.K.K. a child aged 13 years with his penis.
3. The appellant denied both charges at plea. After a full trial, he was convicted of the principal charge of defilement and sentenced to serve 20 years imprisonment.
4. Dissatisfied with the conviction and sentence, the appellant has appealed to this court on the following grounds as per his undated amended grounds of appeal: -
a. The learned trial magistrate failed to consider that the sentence was manifestly harsh and excessive.
b. The learned trial magistrate failed to observe that the trial before her was unfair due to neo meeting the legal end.
c. The learned trial magistrate failed to note that the circumstances of the case are demonstrably less criminally culpable in the society.
d. He prayed for resentencing contending that he had acquired transformative skills acquired during the period of incarceration.
5. The appellant therefore prays that the appeal be allowed, conviction be quashed and sentence set aside.
6. The appeal was canvassed through written submissions filed by both the appellant and the respondent which I have duly considered.
7. In his submissions, the appellant says he had decided to argue his appeal on four grounds but only on sentence. The appellant submits that the sentenced meted out to him is manifestly harsh and excessive. He appreciates that the sentence under section 8(3) of the SOA is a minimum of 20 years imprisonment but argues that mandatory minimum sentences were declared unconstitutional by the Supreme Court and therefore null and void. He submits that the magistrate cannot say that her hands were fettered in passing the sentence as provided for under the law and so should consider the mitigating factors within the circumstances of each case. He cited several cases to support his submission.
8. For instance, in the case of Evans Wanjala Wanyonyi v Republic [2019] KECA 679 (KLR) the Court of Appeal substituted a sentence of 20 years imprisonment with 10 years imprisonment. The 20 years imprisonment had been enhanced by the High Court on appeal after it set aside the trial court sentence of 15 years imprisonment for being below the minimum sentence provided in Section 8 (1) (3) of the Sexual Offences Act.
9. In this case, the appellant submits that considering the conduct of the complainant who was the one pursuing him all the times even after she had been taken back to her home, it would mean that she was behaving as one who consented it to the sexual intercourse with him. Therefore, whereas he is not contesting the issue of conviction, the conduct of the complainant should be taken into account as a mitigating factor when passing sentence.
10. It is true that on the strength of the reasoning and decision in the case of Francis Karioko Muruatetu and Another vs Republic [2017] eKLR, the High Court and even the Court of Appeal routinely reviewed minimum sentences imposed on convicts for different offences other than murder, including for sexual offences, such as the ones cited by the appellant herein, and robbery with violence. However, by the clarification made by the same Supreme Court in its subsequent directions given 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 made it clear that the principles in Muruatetu on sentencing only applied to murder cases, and not to any other type of case, not even sexual offences. The Supreme Court stated thus:
“It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it …
We therefore reiterate that this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute…
It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution.”
11. The Supreme Court has subsequently in its decision in the case of a sexual offence Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) delivered on 12/7/2024 affirmed that position that Muruatetu is not applicable in cases under the Sexual Offences Act.
12. This court is bound by the decision of the Supreme Court and applying the decisions cited herein, I find that the grounds and submissions by the appellant that the learned trial magistrate erred by approaching the issue of sentencing in a wrong way is without merit and the same is rejected.
13. The appellant also states that the trial court failed to abide by the provisions of section 329 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) when she failed to consider his mitigation. He also submitted that there were no aggravating circumstances in his case.
14. Section 329 CPC provides that:
“The court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed.”
15. I have looked at the trial court record and the issue raised by the appellant bears no truth at all. There is an indication in the record that he was given an opportunity to mitigate and he said in mitigation, “I ask for the court’s lenience and I also ask for a non-custodial sentence.” The court then called for a presentence report from the probation department. The report was submitted and the learned trial magistrate considered it as her written notes on sentence appearing on the record. In fact, the report was not favourable at all for the offender. In spite of the unfavourable report, the learned trial magistrate imposed the minimum sentence of 20 years imprisonment without more.
16. I find that the appellant was properly sentenced as per the provisions of section 8(3) of the Sexual Offences Act. He was given the minimum sentence hence cannot complain that the sentence was unconstitutional and that the trial court had the discretion to met out a lesser sentence.
17. Accordingly, for the reasons set out above, I find that the appeal fails and is dismissed in its entirety. The trial court’s sentence upon the accused person is hereby confirmed.
18. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 13th day of May 2025 in the presence of:
The appellant in person in Shimo La Tewa maximum prison.
Ms Vallerie for the respondent.
Umm: Court assistant.
ANDAYI W. FRANCIS
JUDGE
IN THE HIGH COURT OF KENYA AT KWALE
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E018 OF 2023
KAMWENGA MTEZO MWAHUI………………..APPELLANT
VERSUS
REPUBLIC…………………………………………RESPONDENT
(Being an appeal from the original conviction and sentence in Msambweni Magistrates Court S.O. Case No. E042 of 2019 delivered on 24/5/2023 by Hon. Sandra Ogot, PM)
J U D G M E N T
1. The appellant, Kamwenga Mtezo Mwahui was convicted on the principal charge for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The particulars of offence were that on diverse dates between 19/6/2019 and 1/12/2019 at Manyatta village Mwaluvanga location of Matuga Sub-County within Kwale County he intentionally and unlawfully penetrated the vagina of M.K.K. a child aged 13 years with his penis.
2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the SOA. Particulars being that during the said period and at the same place as in the principal charge, he intentionally touched the vagina of M.K.K. a child aged 13 years with his penis.
3. The appellant denied both charges at plea. After a full trial, he was convicted of the principal charge of defilement and sentenced to serve 20 years imprisonment.
4. Dissatisfied with the conviction and sentence, the appellant has appealed to this court on the following grounds as per his undated amended grounds of appeal: -
a. The learned trial magistrate failed to consider that the sentence was manifestly harsh and excessive.
b. The learned trial magistrate failed to observe that the trial before her was unfair due to neo meeting the legal end.
c. The learned trial magistrate failed to note that the circumstances of the case are demonstrably less criminally culpable in the society.
d. He prayed for resentencing contending that he had acquired transformative skills acquired during the period of incarceration.
5. The appellant therefore prays that the appeal be allowed, conviction be quashed and sentence set aside.
6. The appeal was canvassed through written submissions filed by both the appellant and the respondent which I have duly considered.
7. In his submissions, the appellant says he had decided to argue his appeal on four grounds but only on sentence. The appellant submits that the sentenced meted out to him is manifestly harsh and excessive. He appreciates that the sentence under section 8(3) of the SOA is a minimum of 20 years imprisonment but argues that mandatory minimum sentences were declared unconstitutional by the Supreme Court and therefore null and void. He submits that the magistrate cannot say that her hands were fettered in passing the sentence as provided for under the law and so should consider the mitigating factors within the circumstances of each case. He cited several cases to support his submission.
8. For instance, in the case of Evans Wanjala Wanyonyi v Republic [2019] KECA 679 (KLR) the Court of Appeal substituted a sentence of 20 years imprisonment with 10 years imprisonment. The 20 years imprisonment had been enhanced by the High Court on appeal after it set aside the trial court sentence of 15 years imprisonment for being below the minimum sentence provided in Section 8 (1) (3) of the Sexual Offences Act.
9. In this case, the appellant submits that considering the conduct of the complainant who was the one pursuing him all the times even after she had been taken back to her home, it would mean that she was behaving as one who consented it to the sexual intercourse with him. Therefore, whereas he is not contesting the issue of conviction, the conduct of the complainant should be taken into account as a mitigating factor when passing sentence.
10. It is true that on the strength of the reasoning and decision in the case of Francis Karioko Muruatetu and Another vs Republic [2017] eKLR, the High Court and even the Court of Appeal routinely reviewed minimum sentences imposed on convicts for different offences other than murder, including for sexual offences, such as the ones cited by the appellant herein, and robbery with violence. However, by the clarification made by the same Supreme Court in its subsequent directions given 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 made it clear that the principles in Muruatetu on sentencing only applied to murder cases, and not to any other type of case, not even sexual offences. The Supreme Court stated thus:
“It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it …
We therefore reiterate that this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute…
It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution.”
11. The Supreme Court has subsequently in its decision in the case of a sexual offence Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) delivered on 12/7/2024 affirmed that position that Muruatetu is not applicable in cases under the Sexual Offences Act.
12. This court is bound by the decision of the Supreme Court and applying the decisions cited herein, I find that the grounds and submissions by the appellant that the learned trial magistrate erred by approaching the issue of sentencing in a wrong way is without merit and the same is rejected.
13. The appellant also states that the trial court failed to abide by the provisions of section 329 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) when she failed to consider his mitigation. He also submitted that there were no aggravating circumstances in his case.
14. Section 329 CPC provides that:
“The court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed.”
15. I have looked at the trial court record and the issue raised by the appellant bears no truth at all. There is an indication in the record that he was given an opportunity to mitigate and he said in mitigation, “I ask for the court’s lenience and I also ask for a non-custodial sentence.” The court then called for a presentence report from the probation department. The report was submitted and the learned trial magistrate considered it as her written notes on sentence appearing on the record. In fact, the report was not favourable at all for the offender. In spite of the unfavourable report, the learned trial magistrate imposed the minimum sentence of 20 years imprisonment without more.
16. I find that the appellant was properly sentenced as per the provisions of section 8(3) of the Sexual Offences Act. He was given the minimum sentence hence cannot complain that the sentence was unconstitutional and that the trial court had the discretion to met out a lesser sentence.
17. Accordingly, for the reasons set out above, I find that the appeal fails and is dismissed in its entirety. The trial court’s sentence upon the accused person is hereby confirmed.
18. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 13th day of May 2025 in the presence of:
The appellant in person in Shimo La Tewa maximum prison.
Ms Vallerie for the respondent.
Umm: Court assistant.
ANDAYI W. FRANCIS
JUDGE