REPUBLIC OF KENYA
IN THE HIGH COURT AT MAKUENI
CRIMINAL APPEAL E086 OF 2024
MOSES MUSYOKA………………………………………………APPELLANT
VERSUS
REPUBLIC………………………………………………………RESPONDENT
(From original conviction and sentence in S/O Criminal Case No.22 of 2018 in the Senior Principal Magistrate’s Court at Tawa dated 11 th October,2018 (Hon. M.K Mutegi(SRM)
JUDGMENT
1. The appellant, MOSES MUSYOKA was charged with Attempted Defilement Contrary to Section 9 (1) as read with Sub-section 2 of the Sexual Offences Act No.3 2006. The particulars were on the night of 23 rd and 24 th September,2018 at Kilenge village Mbooni West District within Makueni County, the Appellant to commit an act which would cause penetration with a child one M. M. M a girl aged 13 years.
2. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to section 11 (1) of the same Act . It was alleged that on the night of 23 rd and 24 th September,2018 at Kilenge village Mbooni West District within Makueni County, he did an indecent act to a child namely M.M aged 13 years by touching her private parts namely vagina with his penis.
3. On 27 th July 2018 when he first appeared in court for plea the Appellant denied the offence and a plea of not guilty was entered.
4. The matter came up for hearing on the 9 th October,2018. The Appellant requested for the charges to be read to him a fresh.
5. The police file had not been availed, so the matter could not proceed.
6. On the 11 th January,2018, the police file was availed in court and charges read over and explained afresh to the Appellant. He pleaded guilty to the charges and the facts were read and he admitted the same to be true and a plea of guilt was entered.
7. The facts of the charge were that on the 22 nd September,2018 at around 19:30hours, the appellant herein went to a house where the complainant was sleeping, requested her to accompany him to his bedroom where he tried to have sex with her but all in vain. He also caressed her breasts and told her to go to bed. On the 24 th September,2018, he went home drunk and found the complainant sleeping and told her to open the door, but the complainant declined. The complainant rushed out and went to the neighbour who called her uncle then informed the Area Chief. The appellant was arrested the following day and taken to Mbooni Police Station then later charged with this offence.
8. The appellant pleaded guilty to the charge and the facts and was convicted accordingly.
9. In mitigation The appellant told the court that it was Satan who had made him do that as the complainant was his daughter; that his wife was working in Nairobi; that he had 5 children, 3 daughters and 2 boys.
10. The trial court in sentencing him noted that the appellant should have known better than to prey upon his own blood an flesh That instead of being the protector he chose t become his child’s worst nightmare. The appellant was sentenced to 15 years imprisonment,
11. Aggrieved by the conviction and sentence the appellant brought tis appeal on the grounds that :
i. the Learned trial magistrate erred on both fact and law by explicitly not explaining to him the consequences of his plea.
ii. That the Learned Trial magistrate erred on both law and fact by sentencing him to a harsh and excessive sentence.
iii. That the trial magistrate erred on both law and fact by not considering his mitigation.
iv. that the court failed to consider him as a first offender who pleaded guilty
v. That his prayer is for the success of this Appeal, the conviction and the sentence to be set aside.
12. Parties filed their respective submissions.
13. The Appellant on his part submits that the trial court failed to consider that he was a first offender who pleaded guilty. He argues that the Sentencing Policy guidelines 2023 is clear and categorical on first offenders pleading guilty and by stating so the Appellant referred to section 4.3.2 to 4.3.9. to the effect that when a person pleads guilty it saves the victim further trauma , saves victims and witnesses from having to testify, saves the public time and money . That the guidelines provide that such a person ought to benefit from a reduction of the sentence,
14. he argues that he has approached this court to seek orders as per paragraph 4.3.9 of the Sentencing Policy Guidelines which states that in the case of mandatory minimum sentence, the discount cannot go below that minimum term set by the statute. He argues that he is not disputing the mandatory sentence but only by dint of the above situational analysis that gives that Appellant a discount of minimum mandatory of a term of ten(10) years imprisonment.
15. The appellant submits that the trial magistrate seems to have approached the sentencing matter with conflict of interest by dictum factum of his sentencing sentiments thus making a dangerous inhuman, degrading sentence of 15 years imprisonment for attempted defilement which had no aggravating factors in contravention to Article 28 and 29(f) of the Constitution on the right to human dignity and not to be treated to cruel inhuman punishment.
16. The appellant invites this court to redress the matter and order the minimum sentence of 10 years imprisonment by dint of powers bestowed upon the court by Article 23 and 165 of the Constitution of Kenya. He contends that he has made an arguable case to show that the present appeal before this Honourable court deserves to be merited stating that the sentence that was meted against him fell short of what was expected in law and he deserves a benefit of intervention. That it is morally right that this appeal be allowed, the sentence of 15 years be set aside and be substituted with 10 years imprisonment in the interest of justice.
17. The appeal is contested by the State. Learned prosecuting counsel Mr. Kazungu submitted that the Appeal brings the following issues for determination:-
a. Whether the conviction is legal and safe.
b. Whether the sentence is legal and safe.
18. On the conviction it is submitted that the appellant having pleaded guilty, by dint of s. 348 of the Penal Code he is only entitled to an appeal on the legality of the sentence..
19. The Prosecutor concedes that though the appellant understood the charges the trial court ought to have explained to the appellant the consequences of his pleading guilty, He further concedes that the minimum sentence of 10 years imprisonment would be suitable.
Analysis and determination
20. This is an appeal on the legality of the sentence only.
21. This duty of the first appellate court was well articulated in the celebrated case of Okeno v Republic [1972] EA 32; and Kiilu & another v Republic [2005] 1 KLR 174 among other authorities.
22. I have carefully considered the grounds of appeal alongside the written submissions filed by the appellant and the Respondent and the authorities cited. I have also considered the record and the judgment of the trial court.
23. The trial court did not take into account that the facts of the case did not come close to an act of attempted defilement.
24. The facts clearly fall into the alternative charge of committing an indecent act with a child. This is defined by s. 2 thus
"indecent act" means any unlawful intentional act which causes— (a) any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration ;
25. The facts clearly state that the accused tried to have sex – this trying has not been demonstrated by the facts to be any act that came to near penetration of the child. He caressed her breasts; he did not go beyond that and hence he ought to have been convicted of the alternative charge.
26. I note that the particulars of the alternative charge as stated in the charge sheet were exaggerated- stating that the appellant had touched the vagina of the complainant with his penis. These were not the facts that were read by the prosecution and pleaded to by the appellant hence the court ought to have noted this as well.
27. Does this vitiate the conviction?
28. Even though the trial court failed in its duty to explain to the appellant the consequences of his pleading guilty, the appellant voluntarily accepts that he did something wrong towards his daughter. He deemed this to be so wrong that he considered it satanic.
29. In my considered view this does not vitiate the conviction but speaks to the sentence.
30. The appellant was a first offender, he accepted he did wrong and is ready to suffer the punishment.
31. In Shadrack Kipchoge Kogo vs Republic, Eldoret Criminal Appeal No.253 of 2003 (quoted in Arthur Muya Muriuki vs ~Republic (2015) eKLR) , the Court of Appeal stated the following on principles of sentencing:-
“Sentencing is essentially an exercise of the trial court and for the court to interfere, it must be shown that in passing sentence, the court took into account an irrelevant factor or that a wrong principle was applied or short of these the sentence was so harsh and excessive that an error in principle must be inferred.”
32. I find that in the circumstances the sentence did not take into account these relevant factors , the sentence was excessive and he was entitled to the minimum sentences as is conceded by the DPP.
33. In the circumstances the appeal succeeds. The order of the trial court is set aside and substituted as follows.
The accused is convicted for the alternative charge of indecent act with a child c/s 11(1) of the Sexual Offences Act , no 3 of 2006 for touching the breasts of the child. He is sentenced to 10 years imprisonment with effect from 27 th September 2018 .
Judgment dated signed and delivered this 29 th May 2026
Mumbua T Matheka
Judge
CA Chrispol
Appellant Present
Mr. Musyoki for State
FOOTNOTES
[1]
ENDNOTES
[i]
Judgement HCCRA E086 of 2024 Page 2 of 2
IN THE HIGH COURT AT MAKUENI
CRIMINAL APPEAL E086 OF 2024
MOSES MUSYOKA………………………………………………APPELLANT
VERSUS
REPUBLIC………………………………………………………RESPONDENT
(From original conviction and sentence in S/O Criminal Case No.22 of 2018 in the Senior Principal Magistrate’s Court at Tawa dated 11 th October,2018 (Hon. M.K Mutegi(SRM)
JUDGMENT
1. The appellant, MOSES MUSYOKA was charged with Attempted Defilement Contrary to Section 9 (1) as read with Sub-section 2 of the Sexual Offences Act No.3 2006. The particulars were on the night of 23 rd and 24 th September,2018 at Kilenge village Mbooni West District within Makueni County, the Appellant to commit an act which would cause penetration with a child one M. M. M a girl aged 13 years.
2. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to section 11 (1) of the same Act . It was alleged that on the night of 23 rd and 24 th September,2018 at Kilenge village Mbooni West District within Makueni County, he did an indecent act to a child namely M.M aged 13 years by touching her private parts namely vagina with his penis.
3. On 27 th July 2018 when he first appeared in court for plea the Appellant denied the offence and a plea of not guilty was entered.
4. The matter came up for hearing on the 9 th October,2018. The Appellant requested for the charges to be read to him a fresh.
5. The police file had not been availed, so the matter could not proceed.
6. On the 11 th January,2018, the police file was availed in court and charges read over and explained afresh to the Appellant. He pleaded guilty to the charges and the facts were read and he admitted the same to be true and a plea of guilt was entered.
7. The facts of the charge were that on the 22 nd September,2018 at around 19:30hours, the appellant herein went to a house where the complainant was sleeping, requested her to accompany him to his bedroom where he tried to have sex with her but all in vain. He also caressed her breasts and told her to go to bed. On the 24 th September,2018, he went home drunk and found the complainant sleeping and told her to open the door, but the complainant declined. The complainant rushed out and went to the neighbour who called her uncle then informed the Area Chief. The appellant was arrested the following day and taken to Mbooni Police Station then later charged with this offence.
8. The appellant pleaded guilty to the charge and the facts and was convicted accordingly.
9. In mitigation The appellant told the court that it was Satan who had made him do that as the complainant was his daughter; that his wife was working in Nairobi; that he had 5 children, 3 daughters and 2 boys.
10. The trial court in sentencing him noted that the appellant should have known better than to prey upon his own blood an flesh That instead of being the protector he chose t become his child’s worst nightmare. The appellant was sentenced to 15 years imprisonment,
11. Aggrieved by the conviction and sentence the appellant brought tis appeal on the grounds that :
i. the Learned trial magistrate erred on both fact and law by explicitly not explaining to him the consequences of his plea.
ii. That the Learned Trial magistrate erred on both law and fact by sentencing him to a harsh and excessive sentence.
iii. That the trial magistrate erred on both law and fact by not considering his mitigation.
iv. that the court failed to consider him as a first offender who pleaded guilty
v. That his prayer is for the success of this Appeal, the conviction and the sentence to be set aside.
12. Parties filed their respective submissions.
13. The Appellant on his part submits that the trial court failed to consider that he was a first offender who pleaded guilty. He argues that the Sentencing Policy guidelines 2023 is clear and categorical on first offenders pleading guilty and by stating so the Appellant referred to section 4.3.2 to 4.3.9. to the effect that when a person pleads guilty it saves the victim further trauma , saves victims and witnesses from having to testify, saves the public time and money . That the guidelines provide that such a person ought to benefit from a reduction of the sentence,
14. he argues that he has approached this court to seek orders as per paragraph 4.3.9 of the Sentencing Policy Guidelines which states that in the case of mandatory minimum sentence, the discount cannot go below that minimum term set by the statute. He argues that he is not disputing the mandatory sentence but only by dint of the above situational analysis that gives that Appellant a discount of minimum mandatory of a term of ten(10) years imprisonment.
15. The appellant submits that the trial magistrate seems to have approached the sentencing matter with conflict of interest by dictum factum of his sentencing sentiments thus making a dangerous inhuman, degrading sentence of 15 years imprisonment for attempted defilement which had no aggravating factors in contravention to Article 28 and 29(f) of the Constitution on the right to human dignity and not to be treated to cruel inhuman punishment.
16. The appellant invites this court to redress the matter and order the minimum sentence of 10 years imprisonment by dint of powers bestowed upon the court by Article 23 and 165 of the Constitution of Kenya. He contends that he has made an arguable case to show that the present appeal before this Honourable court deserves to be merited stating that the sentence that was meted against him fell short of what was expected in law and he deserves a benefit of intervention. That it is morally right that this appeal be allowed, the sentence of 15 years be set aside and be substituted with 10 years imprisonment in the interest of justice.
17. The appeal is contested by the State. Learned prosecuting counsel Mr. Kazungu submitted that the Appeal brings the following issues for determination:-
a. Whether the conviction is legal and safe.
b. Whether the sentence is legal and safe.
18. On the conviction it is submitted that the appellant having pleaded guilty, by dint of s. 348 of the Penal Code he is only entitled to an appeal on the legality of the sentence..
19. The Prosecutor concedes that though the appellant understood the charges the trial court ought to have explained to the appellant the consequences of his pleading guilty, He further concedes that the minimum sentence of 10 years imprisonment would be suitable.
Analysis and determination
20. This is an appeal on the legality of the sentence only.
21. This duty of the first appellate court was well articulated in the celebrated case of Okeno v Republic [1972] EA 32; and Kiilu & another v Republic [2005] 1 KLR 174 among other authorities.
22. I have carefully considered the grounds of appeal alongside the written submissions filed by the appellant and the Respondent and the authorities cited. I have also considered the record and the judgment of the trial court.
23. The trial court did not take into account that the facts of the case did not come close to an act of attempted defilement.
24. The facts clearly fall into the alternative charge of committing an indecent act with a child. This is defined by s. 2 thus
"indecent act" means any unlawful intentional act which causes— (a) any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration ;
25. The facts clearly state that the accused tried to have sex – this trying has not been demonstrated by the facts to be any act that came to near penetration of the child. He caressed her breasts; he did not go beyond that and hence he ought to have been convicted of the alternative charge.
26. I note that the particulars of the alternative charge as stated in the charge sheet were exaggerated- stating that the appellant had touched the vagina of the complainant with his penis. These were not the facts that were read by the prosecution and pleaded to by the appellant hence the court ought to have noted this as well.
27. Does this vitiate the conviction?
28. Even though the trial court failed in its duty to explain to the appellant the consequences of his pleading guilty, the appellant voluntarily accepts that he did something wrong towards his daughter. He deemed this to be so wrong that he considered it satanic.
29. In my considered view this does not vitiate the conviction but speaks to the sentence.
30. The appellant was a first offender, he accepted he did wrong and is ready to suffer the punishment.
31. In Shadrack Kipchoge Kogo vs Republic, Eldoret Criminal Appeal No.253 of 2003 (quoted in Arthur Muya Muriuki vs ~Republic (2015) eKLR) , the Court of Appeal stated the following on principles of sentencing:-
“Sentencing is essentially an exercise of the trial court and for the court to interfere, it must be shown that in passing sentence, the court took into account an irrelevant factor or that a wrong principle was applied or short of these the sentence was so harsh and excessive that an error in principle must be inferred.”
32. I find that in the circumstances the sentence did not take into account these relevant factors , the sentence was excessive and he was entitled to the minimum sentences as is conceded by the DPP.
33. In the circumstances the appeal succeeds. The order of the trial court is set aside and substituted as follows.
The accused is convicted for the alternative charge of indecent act with a child c/s 11(1) of the Sexual Offences Act , no 3 of 2006 for touching the breasts of the child. He is sentenced to 10 years imprisonment with effect from 27 th September 2018 .
Judgment dated signed and delivered this 29 th May 2026
Mumbua T Matheka
Judge
CA Chrispol
Appellant Present
Mr. Musyoki for State
FOOTNOTES
[1]
ENDNOTES
[i]
Judgement HCCRA E086 of 2024 Page 2 of 2