Karega v Republic (Criminal Appeal 16 of 2015)  KEHC 15395 (KLR) (10 November 2022) (Judgment)
Neutral citation:  KEHC 15395 (KLR)
Republic of Kenya
Criminal Appeal 16 of 2015
HPG Waweru, J
November 10, 2022
(Formerly Nyeri HC Criminal Appeal NO.55 ‘A’ of 2011)
Joel Mwangi Karega
((Appeal from original Sentence in Nanyuki SPM Criminal Case No 390 of 2011))
1.The Appellant herein, Joel Mwangi Karega, was convicted upon his own plea of defilement contrary to section 8(1) & (3) of the Sexual Offences Act, 2006. He was sentenced to 20 years imprisonment. He appealed against that sentence only at the High Court at Nyeri. His appeal was eventually transferred to this court; however, the original lower court record (together with ay typed copies of proceedings that there might have been) were said to have been irretrievably lost in Nyeri.
2.The Appellant has been serving his 20–year sentence from the year 2011. He pleads for reduction of that sentence to enable him to go home and reclaim back his normal, civilian life. He says he was born in 1968 and that he is now 52 years old; that he was married with 3 children when he was jailed, but that he has learnt that his wife has since gone back to her parents’ home; and that he has now served almost 12 years of the sentence.
3.Learned counsel for the Respondent while pointing out that the sentence meted out to the Appellant was lawful and mandatory, nevertheless submitted that with recent jurisprudence from the Supreme Court of Kenya regarding the statutory mandatory death sentence for murder pronounced in the now notorious cases referred to as the Muruatetu Cases, this court may re-look at the Appellant’s sentence and interfere as it may deem just.
4.The Appellant pleaded guilty to the offence, itself a sign of remorse. His appeal has taken a very long and unreasonable time to be dealt with because of the loss of the original lower court record and any typed copies thereof. This was not his fault. Although the court is unable to see in what circumstances the offence was committed, the fact that the Appellant pleaded guilty must count to his credit. I am confident that had the trial court not felt bound by the statutory mandatory sentence, it probably would have awarded a sentence less than the 20 years it gave the Appellant.
5.I will in the event partially allow the appeal against sentence by setting aside the term of 20 years imprisonment awarded to the Appellant, and by substituting therefor a sentence equivalent to the time that he has already served. That means that the Appellant shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 10TH DAY OF NOVEMBER 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 10TH DAY OF NOVEMBER 2022