1.When the Appellant, GCB, appeared before the Resident Magistrate at Kericho for the offence of incest, contrary to Section 20 (1) of the Sexual Offences Act he pleaded not guilty to the charge as well as the alternative charge of committing an indecent act with a child, contrary to Section 11 of the Sexual Offences Act.
2.It was alleged that on 29th September 2018 at Kipwastuiyo – Bureti – Kericho County being a male person caused his penis to penetrate the vagina of MC, a female child aged four (4) years who was to his knowledge his niece or he intentionally touched the girl’s vagina with is penis.
3.Upon being tried the appellant was convicted on the main count and sentenced to serve twenty five (25) years imprisonment. He was aggrieved by the decision and preferred this appeal which is anchored on the grounds contained in the petition of appeal filed on 9th December 2019 in which he complains about being convicted on the basis of evidence which was insufficient, unreliable and incapable of proving the charge beyond reasonable doubt. He also complains that the trial court disregarded his defene. He therefore prayed for the success of the appeal in its entirety.
4.At the hearing of the appeal, the appellant appeared in person and presented his written submissions containing additional grounds which apparently overrule the previous grounds on conviction and renders the appeal one on sentence rather than conviction.Thus, the appeal metamorphosed from being an appeal on both conviction and sentence to an appeal on sentence only.
5.In that regard, the appellant contends that the sentence imposed upon him by the trial court of twenty five years imprisonment was too harsh and excessive as he was a first offender. He expressed his remorse, regret and repentance for his unlawful action.
6.The Learned Prosecution Counsel, M/s Aseda appeared for the state/respondent and opposed the appeal arguing that the trial court had the necessary discretion to pass the sentence which was in any event, lawful. The Learned Prosecution Counsel therefore urged this court to dismiss the appeal.
7.Basically, an appeal on sentence is a calling to the appellate court to interfere with the discretion of a trial court.The appellant is therefore asking this court to interfere with the discretion of the trial court and reduce the sentence imposed upon him downward.Having been found guilty of incest by the trial court, the appellant became liable to imprisonment for a term of not less than ten (10) years. Such is the minimum sentence that an offender can get thereby implying that he could even be jailed for many years above the threshold of the prescribed ten years.
8.The trial court considered the circumstances of the case and the appellant’s mitigation and settled on twenty five (25) years imprisonment as the appropriate sentence.It is undoubted that the sentence was lawful, but whether or not it was harsh and excessive would be dependant on the gravity of the offence, the circumstances leading to its commission and of course, the offenders antecedents or mitigation.
9.In the trial court, the record shows that the appellant was not remorseful in as much as he insisted and maintained that he did not commit the offence even after being found guilty by the court. He appears to have reflected on the whole episode and now concedes that he committed the offence for which he is now remorseful and pleads for leniency. This is rather late in time but as the saying goes “better late than never”.
10.All considered and in particular that the appellant was a first offender the sentence of twenty five (25) years imprisonment was slightly excessive but not harsh consideration being given to the circumstances of the case. In that regard, this sentence imposed by the trial court is hereby set aside and substituted for a sentence of fifteen (15) years imprisonment. It is only to that extent that this appeal succeeds.Ordered accordingly.