1.CKK, the appellant was arraigned following allegations of having committed an incestuous act with his biological sister, JWK on the 23rd day of April, 2022.
2.At the outset, he admitted the charge, was convicted and sentenced to serve twenty (20) years imprisonment.
3.Dissatisfied the appellant proffered an appeal indicated as against the judgment/decision on grounds that the sentence imposed is too harsh; that he is 22 years old and his judgment was impaired; he has been rehabilitated; his mitigation was disregarded; and in the interest of justice he seeks a retrial.
4.The appeal was disposed through written submissions. It was urged by the appellant that he was not informed promptly of the charges as stipulated byarticle 50(1) of the constitution and the danger of pleading guilty to such a serious offence. That it was not established if he was in a right thinking state of mind.
5.That the sentence imposed was manifestly harsh and excessive. That the case was not so grave as it could have been referred to Probation/Community Service Orders(CSO) and the family would have explored reconciliation.
6.That when granted the opportunity to mitigate he only talked of problems and challenges that his family was undergoing, but, if given a chance he would have something cogent to state.
7.The State/Respondent through learned Prosecution Counsel, Ms. Rachel Karani opposed the appeal. She urged that the appeal is unmerited as the appellant pleaded guilty twice unequivocally and by virtue of section 348 of the Criminal Procedure Code the appeal is untenable. That the appellant has not challenged the charge, detailed facts read to him and the manner in which the facts were stated. Arguing that the pleas was unequivocal she cited the case of John Mwendo Musau v Republic (2013)eKLR where the court stated that:
8.That the appellant has not alleged that he did not understand the charge and the facts thereof; and, that the sentence meted out was proper.
9.This being a first appellate court, its duty is to re-analyze what transpired at trial and come up with an independent finding.
12.This means that where an accused person has admitted a charge and consequently been convicted for the same, an appellate court can only interfere with the conviction where the plea is equivocal.
13.This is a case where upon arraignment the charge which captured the necessary ingredients was read to the appellant who admitted the fact as well. The record indicated thus:
14.The appellant claims to have pleaded guilty to the charges without knowing the consequences. In his submissions he faulted the court for not appreciating whether or not he was in his right mind. Section 11 of the Penal Code provides thus:
15.The appellant told the court his preferred language of communication and his age. There was no suggestion that he could have been of unstable mental state. He was given an opportunity to address the court prior to being sentenced and there was nothing to move the court to act pursuant to the provisions of section 162 of the CPC that would cause the court to inquire into his mental status.
16.The procedure of taking plea was stated in the well acknowledged case of Adan v Republic (1973) EA 445 where the court stated that:(i)The charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands;(ii)The accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded;(iii)The prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts;(iv)If the accused does not agree with the facts or raises any question of his guilt his reply must be recorded and change of plea entered;(v)If there is no change of plea a conviction should be recorded and a statement of the facts relevant to sentence together with the accused’s reply should be recorded.”
17.The charge was read in Kiswahili a language the appellant was conversant with and he communicated to the court in that particular language. The substance of the charge and elements thereto were explained to him and he responded having understood what was explained. The record shows that having admitted the truthfulness of the explanation rendered, he went on to explain what he did in his own language. He stated that:
18.And after the facts were presented, he explained how he committed the act. He was given the opportunity to mitigate pursuant to the provisions of section 216 of the CPC and he tendered the required evidence. He stated thus:
19.His complaint is that the trial court disregarded his mitigation. But, looking at the record, the trial court noted thus:
20.The learned trial magistrate gave reasons for reaching the decision to sentence the appellant to twenty (20) years imprisonment.
21.The appellant also complained that the sentence was harsh. Section 3(3) of the Sexual Offences Act provides thus:
22.Circumstances under which an appellate court can interfere with a sentence passed by the trial court were stated in the case of Bernard Kimani Gacheru v Republic (2021) eKLR thus:
____or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist” (emphasis mine).
23.The appellant herein was a first offender and a young adult aged 22 years. He admitted the charge at the outset therefore saved court’s time. One of the objectives of sentence is to deter an offender from committing another offence. In this case the appellant was incarcerated hence removed from the society and especially so, from his family, and in particular his sister that he was preying on. He claims to have been rehabilitated which is a suggestion that he may have acknowledged the harm that was occasioned.
24.In the premises, I set aside the sentence meted out of twenty (20) years imprisonment, which I substitute it with fifteen (15) years imprisonment.
25.It is so ordered.