MTG v Republic (Criminal Revision E247 of 2022)  KEHC 16212 (KLR) (9 December 2022) (Ruling)
Neutral citation:  KEHC 16212 (KLR)
Republic of Kenya
Criminal Revision E247 of 2022
JN Onyiego, J
December 9, 2022
(The applicant was on September 25, 2019 arraigned before Wundanyi Resident Magistrate’s court facing the charge of incest contrary to section 20(1) of the Sexual Offences Act number 3 of 2006. ... . Dissatisfied with both conviction and sentence, the Applicant filed an appeal being Criminal Appeal Number E067 of 2021.)
1.The applicant was on September 25, 2019 arraigned before Wundanyi Resident Magistrate’s court facing the charge of incest contrary to section 20(1) of the Sexual Offences Act number 3 of 2006. Particulars were that on 2nd day of September, 2019 at around 2200 hours at Bura Station of Mwatate Sub-County within Taita Taveta County intentionally touched the vagina of VS with his penis who to his knowledge was his niece.
2.He was also charged with an alternative count of committing an indecent act with an adult contrary to section 2(11) as read with section 11(1) of the Sexual Offences Act Number 3 of 2006. Particulars were that on the September 22, 2019 at around 1000hours at Bura Station of Mwatate Sub-County within Taita Taveta County intentionally and unlawfully touched the vagina of VS female adult aged 21 years using his penis.
3.Upon returning a plea of not guilty, the matter proceeded to full trial and the Applicant was sentenced to 5 years imprisonment on September 28, 2021.
4.Dissatisfied with both conviction and sentence, the applicant filed an appeal being Criminal Appeal Number E067 of 2021. After hearing the appeal, Mativo J as he then was dismissed the appeal and upheld both the conviction and sentence. At paragraph 34 the judge stated that he did not find any basis to hold that the magistrate erred in arriving at the conviction and the sentence.
5.From the learned judge’s holding, it is clear that the issue of sentence was settled. To come back to the same court under section 362 and 364 to seek review of the sentence is an abuse of the court process. If the appellant was dissatisfied, he should have appealed to the Court of Appeal. In any event, the applicant was given a sentence far below the minimum sentence of 10 years provided for under statute for the offence of incest.
6.In my view, this application has no merit and the same is dismissed. Right of appeal 14 days.
DATED SIGNED AND DELIVERED IN OPEN COURT THIS 9TH DAY OF DECEMBER, 2022.……………………HON J ONYIEGOJUDGE