Case ID:167967

Pius Kiptanui v Republic [2020] eKLR

Case Metadata

Case Number:

Criminal Appeal 191 of 2019

Parties:

Pius Kiptanui v Republic

Date Delivered:

09 Dec 2020

Case Class:

Criminal

Court:

High Court at Embu

Case Action:

Judgment

Judge(s):

Hellen Amolo Omondi

Citation:

Pius Kiptanui v Republic [2020] eKLR

Advocates:

Miss Okok for DPP

Case History:

(Being an Appeal from the sentence of P.W. Wasike (SRM) delivered on 26th of November 2019 in Kapsabet SPM Criminal Case No. 3265 of 2016.)

Court Division:

Criminal

County:

Uasin Gishu

Advocates:

Miss Okok for DPP

History Docket No:

Criminal Case No. 3265 of 2016

History Magistrate:

Hon. P.W. Wasike - SRM

History Advocates:

One party or some parties represented

History County:

Nandi

Case Outcome:

Sentence reduced to period already served

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CRIMINAL APPEAL NO. 191 OF 2019

.

PIUS KIPTANUI................................APPELLANT

VERSUS

REPUBLIC....................................RESPONDENT

(Being an Appeal from the sentence of P.W. Wasike (SRM) delivered on 26

th

of November 2019 in Kapsabet SPM Criminal Case No. 3265 of 2016.)

JUDGMENT

1. PIUS KIPTANUI

(the appellant) was convicted on a charge of defilement contrary to section 8(1) as read with section 8 (4) of the Sexual Offences Act No 3 of 2006. The particulars of the charge were that on 6

th

December 2016 at [Particulars Withheld] village within Nandi County, he intentionally and unlawfully caused his penis to penetrate the vagina on

MJ

[1]

(girl aged 16 years*) . He denied the charge, but after a trial in which 6 witnesses testified in support of the prosecution, he was convicted and sentenced to serve 15 years imprisonment.

2.

MJ confirmed to the trial court that the appellant (who was her school-mate but a few classes ahead of her in primary school) was her boyfriend ever since she was in Standard 5. She visited on 18/12/2016 at 3.00pm-by then, MJ was in Form II, and come nightfall, the appellant left with his friend, and she spent the night alone, and he returned in the morning. The appellant left for work, and when he returned in the evening, they slept together and had sex. Eventually she was traced to the appellant’s house and he was arrested.

3.

The appeal is on sentence only, pegged to the Supreme Court’s decision in the case of

Francis Karioko Muruatetu and Another v Republic [2017] eKLR

which held that the mandatory nature of sentences was unconstitutional in so far as it interfered with the discretion of courts in meting sentence.

4.

The appellant adopts his grounds of appeal and submission filed and he informed the Court that he is not challenging conviction and only wished to proceed on sentence only. He urged the court to be lenient and consider a less harsh sentence, acknowledging that he had done wrong and expressing remorse.

5.

He urges this court to consider that he is a first offender and treat him with compassion and that he had already spent 2 years in prison. He also pointed out that he had taken advantage of the rehabilitation programmes at the prison and had achieved a certificate in health education and theological studies which will help in his social adaptation. He urged the Court to rely on the

Francis Muruatetu’s case [supra] and R v Tom Chomondley [009] eKLR

where Apondi J, in sentencing the accused for 8 months where a life was lost stated that sentence should also serve to rehabilitate and salvage an offender. He prays that the Court to consider the period he stayed in custody during trial and reduce his sentence. He is also undergoing a course in carpentry and joinery.

6.

Miss Okok on behalf of the DPP points out that the appellant ought to have exercised caution while relating with a high school girl, but conceded that the sentence was rather harsh. She nonetheless pointed out that there has been a rise in teenage pregnancies and requested this court to review the sentence downwards, but still mete out a custodial sentence.

7.

In the case of

Dismas Wafula Kilwake v R [2018] eKLR

,the Court of Appeal had the following to say about the mandatory minimum sentences prescribed in the Sexual Offences Act:-

“In principle, we are persuaded that there is no rational reason why the reasoning of the Supreme Court [in Francis Karioko Muruatetu & Another v. Republic, SC Pet. No. 16 of 2015], which holds that the mandatory death sentence is unconstitutional for depriving the court’s discretion to impose an appropriate sentence depending on the circumstances of each case, should not apply to the provisions of the Sexual Offences Act, which do exactly the same thing.

Being so persuaded, we hold that the provisions of Section 8 of the sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.

The Sentencing Policy Guidelines require the court, in sentencing an offender to a non-custodial sentence to take into account both aggravating and mitigating factors. The aggravating factors include use of a weapon to frighten or injure the victim, use of violence, the number of victims involved in the offence, the physical and psychological effect of the offence on the victim, whether the offence was committed by an individual or a gang, and the previous convictions of the offender. Among the mitigating factors are provocation, offer of restitution, the age of the offender, the level of harm or damage inflicted, the role played by the offender in the commission of the offence and whether the offender is remorseful.”

8.

It is clear that courts are required to consider individual circumstances of each case where the accused person is charged under the Sexual Offences Act which have prescribed minimum sentences. Where there are compelling reasons to depart from the minimum sentence prescribe, the Court can impose a different sentence.

9.

The circumstances of this case demonstrate the dilemma of young adults and teenagers who are in the puberty stage, and the struggle of fighting their raging hormones in a bid to fit in a bracket which they can only sniff at much as they may be tempted to touch. It is the dilemma of being in love (maybe puppy-love) and the sweet sixteen excitements of being too young to know that falling in love and indulging in the pleasures of the flesh are forbidden.

10.

I take note that during his incarceration in prison, the appellant has encountered new experiences, and learnt new skills and has completely reformed; socially, spiritually and psychologically, he is remorseful and repentant for his action. I have also considered the fact that the appellant took imprisonment positively and took advantage of opportunities available in prison to reform and gain skills which will help him impact on the society positively. I have considered his age. In my view, the appellant will be more beneficial to his family and society while out of prison.

11.

I note that the appellant has already served 2 years for what was not in

strictu sensu

taking advantage of a young girl, but rather building on a relationship which had spanned the years since childhood in their primary school days.

2 years in prison for falling in love and expressing it in sexual pleasure is a huge price to pay and I am persuaded it is sufficient punishment. I therefore set the sentence of 15 years aside, and reduce it to the period already served. The appellant shall be set at liberty forthwith unless otherwise lawfully held.

Delivered and dated this 9

th

day of December 2020 at Eldoret

H.A. OMONDI

JUDGE

Miss Okok for DPP

Appellant present in person

C/A-Komen

[1]

Initials used to protect the minor’s identity