REASONS FOR THE DECISION OF THE COURT
1.Ronald Simiyu Nakitare (the appellant) is a free man; not because he did not access a forbidden fruit but because justice proffers leniency to those who acknowledge their wrong deeds. On February 14, 2023, St Valentine’s Day, justice reciprocated its love for the appellant and his liberty was restored awaiting the reasons that we issue today. On that day when this matter came up for hearing, the court gave a decision pursuant to rule 34(7) of the Court of Appeal Rules, 2022 reducing the appellant’s sentence to the period already served and reserved the reasons for that decision for this date.
2.The appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. The offence was committed against LSW aged 14 years. The offence took place in [particulars withheld] within Bungoma County between the 12th and September 14, 2012. When the appellant was presented to the Senior Resident Magistrate’s Court at Kimilili, he pleaded guilty to the offence and was sentenced to 20 years imprisonment. His appeal to the High Court was found to be without merit and dismissed in a judgment delivered on November 27, 2014. This prompted him to file the present appeal where he is only appealing against sentence.
3.This matter was initially listed for virtual hearing on February 13, 2023. However, due to technological challenges, the matter was adjourned to and heard on February 14, 2023. Both the appellant and Mr Okango, the learned prosecution counsel for the respondent, had filed their submissions which they sought to rely on.
4.The appellant’s contention was that his sentence was passed without proof of the complainant’s age notwithstanding the importance of the age of the victim in sentencing under the Sexual Offences Act. He also submitted that the trial court failed to exercise its discretion and consequently failed to give due consideration to the mitigating circumstances of this case thereby passing a harsh sentence. The appellant further stated that the relationship between him and the complainant was that of a “boyfriend and girlfriend” and that no force was used in the process. He additionally pointed out that he was aged 20 years at the time of the commission of the offence. The appellant argued that the failure by the trial court to exercise its discretion subjected him to suffer the mandatory sentence urging this Court to intervene in light of recent judicial pronouncements regarding mandatory sentences under the Sexual Offences Act.To buttress this point, he relied on the High Court decision in Philip Mueke Maingi & 2 others vs Republic  eKLR and urged us to consider the circumstances of this case and find that the period he has served in incarceration is sufficient punishment as he has learnt his lesson.
5.Mr Okango quite properly conceded the appeal on sentence. Counsel urged the court that the mitigating circumstances of this case, as well as judicial authorities cited in the respondent’s submissions, supported the reduction of the appellant’s sentence to the period already served which was about 10 years. He referred to the cases of Philip Mueke Maingi & 2 others v Republic  eKLR and Joshua Gichuki Mwangi vs Republic  eKLR.
6.Counsel submitted that the mandate of this court on a second appeal is confined to matters of law only. Concisely, that under section 361 of the Criminal Procedure Code, severity of a sentence is regarded as a factual matter and does not therefore fall under our remit. Further, that an appellant seeking to have this court’s audience on sentence must establish that either the sentence was enhanced by the High Court, or that the subordinate court had no power to pass that sentence. On this, we were referred to the decision of this court in Simon Karanja Kiarie vs Republic  eKLR.
7.In view of the submissions of the parties, what is required of us therefore is to first ascertain whether the appeal before us is structured in a way that brings it within the confined parameters of our jurisdiction in as far as appeals against sentence are concerned. In conducting this preliminary inquiry, we are guided by section 361 of the Criminal Procedure Code. It is not in dispute that the High Court did not enhance the appellant’s sentence. There is also no argument before this court that the trial court exceeded the jurisdiction donated to it by section 7 of the Criminal Procedure Code. However, upon review of the appeal before us, it is evident that the appellant challenges the sentence on the ground that the trial court and the first appellate court respectively passed and upheld the 20 years’ jail term in its mandatory aspect. It is also a plea that we review the sentence in view of jurisprudence that has come after the judgements of the two courts below on mandatory sentences prescribed under the Sexual Offences Act. In our view, this argument renders the appeal a question of law which then grants the appellant an audience before this court.
8.Having determined that we have jurisdiction, our next line of inquiry is in respect to the sentence passed. The trial court in passing the sentence stated as follows:As for the High Court, the record reads as follows:
9.Upon giving due consideration to the extracts above, it is not in doubt that both the trial court and the first appellate court proceeded on the understanding that they lacked the sentencing discretion under section 8(3) of the Sexual Offences Act; and that they had no option but to pass the prescribed mandatory sentence. On this, we cannot fault them for proceeding in such a manner as that was the jurisprudential position at the time they rendered their decisions. However, this appeal coming up in 2022 must find favour in light of recent judicial pronouncements with regard to the mandatory nature of sentences under the Sexual Offences Act.
10.The following judicial pronouncements perhaps form the fort upon which our intervention is called for. In Dismas Wafula Kilwake vs Republic  eKLR, this court stated that:
11.Similarly, in Joshua Gichuki Mwangi vs Republic, Nyeri Criminal Appeal No 84 of 2015, this Court stated that:
13.There is therefore a judicial decision in place that has found the mandatory nature of the sentences under the Sexual Offences Act to be unconstitutional. From the foregoing authorities and at the risk of being repetitive, we reiterate the view that judicial discretion is one of the tools available to the courts to enable them to deliver justice by rendering proportionate punishment commensurate to the circumstances of each particular case. A blanket sentence, denial of discretion and disregard of the circumstances of the case in question is but a whimsical and arbitrary dispensation of justice. A sentence ought to take the circumstances of the particular case into consideration as convictions arise from different circumstances; some heinous while some not too aggravated.
14.Having said the foregoing, we have no doubt that our intervention in this appeal is called for. In this case, the appellant was sentenced to 20 years imprisonment. We reiterate that there is nothing unconstitutional about this sentence as the same is provided for under section 8(3) of the Sexual Offences Act. It is the fact that the sentence was meted out against the appellant in its mandatory nature that has called for our intervention.
15.Paragraph 23.9 of the Sentencing Policy Guidelines issued by the Kenyan Judiciary in 2016, provides guidance on how to conduct a balancing act between the aggravating and mitigating circumstances during sentencing. Therefore, in discharging our mandate, we must take into consideration both the aggravating and mitigating factors. The appellant did not say a word in his mitigation. The prosecutor indicated that the appellant had no previous record and we take it that he was a first offender. The trial court on its part noted that the appellant was not remorseful. We observe that the failure to mitigate cannot of itself serve as evidence of lack of remorse. Sometimes those who appear in our courts are overwhelmed by their circumstances and are lost for words. We additionally note that previously the minimum sentences provided for some crimes dissuaded accused persons from proffering mitigation for the simple reason that mitigation would not reduce the fixed sentences. The lack of mitigation on record should therefore not be treated to the disadvantage of the appellant.
16.In reviewing the appellant’s sentence, we take cognizance of the fact that the Sentencing Policy Guidelines require courts in passing sentence to take into account the fact that an accused person has pleaded guilty. In this case, the appellant pleaded guilty on his first appearance. We further note that the complainant lived with the appellant for a few days, in what the appellant terms as “boyfriend and girlfriend relationship”. Additionally, the appellant was aged 20 years old at the time of commission of the offence. The complainant was said to be 14 years old. Although a crime was committed the age difference between the appellant and the victim was not vast. In our view, there were no aggravating circumstances warranting 20 years imprisonment on such a lad. A lesser period of sentence would have sufficed. In the circumstances, and considering that the appellant had been in prison for about 10 years, we found that the period already served was sufficient and corresponded with the objectives of sentencing. Counsel for the respondent is saluted for seeing sense in the appeal and readily conceding to it.
17.In the end, we find the appeal to have merit. For the record and for avoidance of doubt we confirm the conviction. We, however, allow the appeal against sentence and set aside the 20 years’ imprisonment. The sentence is reduced to the period already served in prison as we deem it sufficient punishment for the appellant. This explains why we set the appellant free on the date of the hearing of his appeal, a befitting gift on Valentine’s Day, as we deemed it unjust for him to spend another day in jail.