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JudgmentTITUS NDETO VS The Republic10 min read

TITUS NDETO VS The Republic

High Court at Mombasa High Court · · Andayi W.F.

(Being an appeal from the conviction and sentence in Magistrates Court Criminal Case No. E142 of 2021 decided on 20th January 2023 by Hon. MS M. Mutuku, Chief Magistrate)

  1. The appellant, Titus Ndeto was charged with 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. The particulars of the offence were that the appellant on on diverse dates between 17th October 2021 and 24th October 2021 at Soweto area in Likoni Sub-County within Mombasa County, intentionally and unlawfully caused his penis to penetrate the vagina of M.S. a child aged 13 years.
  2. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. The particulars of the offence were that the appellant on diverse dates between 17th October 2021 and 24th October 2021 at Soweto area in Likoni Sub-County within Mombasa County, intentionally touched the vagina of M.S. a child aged 13 years with his penis.
  3. The prosecution called 4 witnesses in support of its case. Upon being placed on his defence the appellant gave sworn evidence and called one witness to support his case.
  4. At the end of the trial, the accused person was found guilty of the principal charge of defilement and he was convicted and sentenced to serve 20 years imprisonment.
  5. The appellant was aggrieved by the decision of the trial court and in his undated amended grounds of appeal which were filed in court on4/7/2024 he states that his appeal is on sentence only. The grounds are that:
    1. The learned trial magistrate erred in law and in fact for not considering her verdict on imposing of sentence was unfair due to the incomplete trial process as section 329 was not fully adhered to both parties as to maintain the equilibrium of the scales of justice.
    2. The learned magistrate failed to exercise her duty in considering that the concept of mandatory minimum sentences was declared unconstitutional by the Supreme Court which gave a reprieve for other courts to decide cases on discretional capacity as their circumstances.
    3. The learned trial magistrate failed to consider the principles offered in sentencing guidelines policy when imposing the sentence.
    4. That his appeal is on sentence only and he request is for the court to consider his pre-conviction and post-conviction period as to ascertain his position for re-integration in the community.
  6. The appeal was opposed by the respondent who filed grounds of opposition dated 19/6/2024 and filed in court on 19/6/2024 stating that:
    1. identification of the appellant was established
    2. the age of the minor was proved at the trial court.
    3. the fact of penetration was proved.
    4. the trial court guaranteed the appellant’s right to a fair trial.
    5. the appellant’s defense was considered by the trial court and a finding made on the same.
    6. the prosecution proved its case beyond reasonable doubt.
    7. the period spent by the appellant in custody was considered during sentencing.
    8. the sentence meted by the trial court was lawful.
  7. It is apparent that the grounds of opposition having been filed before the amended grounds of appeal, grounds (a) to (f) above became otiose for they address issues which were not part of the amended grounds of appeal on sentencing. The only relevant grounds of opposition addressing the amended grounds of appeal are (g) and (h).
  8. The appeal was disposed of by way of written submissions filed by the appellant while the respondent relied on the grounds of opposition only
  9. In his submissions, the appellant reiterated that his appeal was on sentence only as conviction was had on sound grounds. He submitted that whereas the trial court properly considered and meted out justice on the findings leading to conviction, the same was not the case on sentencing.
  10. I have carefully considered the amended grounds of appeal in the petition, the evidence tendered at the trial and the trial court’s findings thereon, the submissions by the appellant herein and the grounds of opposition by the respondent. The issue for determination is whether the sentence imposed by the trial court was meritorious.
  11. The process of sentencing is important in a trial just as the process leading to the judgment as was held by the Constitutional Court of Uganda in the case of Attorney General v Susan Kigula & 417 Others, Supreme Court of Uganda Constitutional Appeal No. 3 of 2006 as cited in the case of Joseph Kaberia Kahinga , Joseph Bariu Imiemba, Frederick David Tsuma, Joseph Mutuma, Daniel Kioko Mbuva, Joseph Mwaura, Musa Omolo Ogolla, Peter Matiku Muhiru, Titus Mutulu Kimomo, Aggrey Chiteki, Wilson Mwangi Kinyua & Ibrahim Ali Halake v Attorney General [2016] KEHC 3130 (KLR) that:

“A trial does not stop at convicting a person. The process of sentencing a person is part of the trial. This is because the court will take into account the evidence, the nature of the offence and the circumstances of the case in order to arrive at an appropriate sentence.”

  1. On appeal, the principles which guide the appellate court in considering a review of sentence are as enunciated in the case of Ogalo s/o Owoura v. Reginam (1954) EACA, 270 that:

“The principles upon which an Appellate Court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by trial Judge unless … it is evident that the Judge acted upon some wrong principle or overlooked some material factor. To this we would add a third criteria, namely that the sentence is manifestly excessive in view of the circumstances of the case.”

  1. The appellant submits that the learned trial magistrate approached and determined the issue of sentence on the false law of minimum mandatory sentence as prescribed in the Sexual Offences Act without considering that it was declared unconstitutional by the Supreme Court. He cited several cases to support his submission.
  2. It is true as submitted by the appellant 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 mandatory 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.” 

  1. The Supreme Court has subsequently in its decision in a 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.
  2. 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.
  3. 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 give him an opportunity to mitigate. That she gave the prosecution an opportunity to address the court prior to sentencing and the prosecutor said that accused may be treated as a first offender.
  4. 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.”

  1. I have looked at the trial court record and the issue raised by the appellant bears truth because there is no indication in the record that he was given an opportunity to mitigate. Granted that he faced a minimum mandatory sentence, he was still entitled to be given an opportunity to mitigate. In the case of Godfrey Ngotho Mutiso versus Republic Criminal Appeal No.77 of 2008 the Court of Appeal while considering the provisions of section 329 CPC said thus:

“…the learned judge of the Superior Court simply imposed the death penalty upon convicting the appellant. In doing so the learned judge was in error because under Section 329 of the Criminal Procedure Code, he was entitled, before passing sentence, to have received such evidence as he thought fit in order to inform himself as to the correct sentence to pass.”

  1. The Judiciary Sentencing Policy Guidelines 2023 paragraph 4.5.6 provides that “convicted offenders should be expressly provided with the opportunity to present submissions in mitigation.” In the case of R. v. Nasanairi Nsubuga (1950) 17 EACA, 130 , the Court of Appeal for Eastern Africa, while considering section 284 of the Uganda Criminal Procedure Code which is similar to section 329 CPC held that while requesting such additional information is discretionary. The Courts said:

“On our reading of this section it is permissive only and it enables the Court to receive evidence where evidence is necessary. For example, such evidence would be necessary where the accused person disputes some previous conviction, or some statement made against him, or if he wishes to give evidence himself of good character.”

  1. It is therefore desirable to adhere to this requirement in spite of the offence the accused person has been convicted of carries a minimum mandatory sentence such as in the present case.
  2. The importance of taking and recording the mitigation by an offender is underscored in the Judiciary Criminal Procedure Bench Book at paragraph 105 where it provides that the mitigation statement, as part of the court record, may be valuable when considering whether to exercise the prerogative of mercy as any offender, even one sentenced to death, may petition the President for mercy as provided for under section 21(2)(b) of the Power of Mercy Act (POMA).
  3. I therefore find that the learned trial magistrate ought to have given the appellant an opportunity to offer his mitigation especially after she had heard the prosecution, even when the prosecution’s word was favourable to the appellant.
  4. In spite of that procedural lapse, 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 mandatory sentence hence cannot complain that the sentence was unconstitutional and that the trial court had the discretion to met out a lesser sentence.
  5. The final issue that this court finds merit to consider is the failure by the trial court to expressly indicate that it had taken into account the period the appellant had been in custody pending his trial. According to the Judiciary Sentencing Policy Guidelines:

“The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”

  1. Accordingly, under Section 333(2) of the Criminal Procedure Code the period served in remand from the date he was arraigned for plea taking to the date of conviction is to be computed in the term of imprisonment.
  2. Accordingly, for the reasons set out above, I find that the appeal has no merit and the same is dismissed.

63. It is so ordered.

Dated, signed and delivered at Mombasa on the Virtual Platform, Teams, this 29th day of October 2024 in the presence of:

The appellant in person from Kamiti prison.

Mr. Ngiri for the respondent

The appellant in person from Shimo la Tewa prison.

Etropia court assistant.


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