Case ID:178047

Mugenda Mwangi Irungu & another v Republic [2021] eKLR

Case Metadata

Case Number:

Criminal Appeals 17 & 18 of 2020 (Consolidated)

Parties:

Mugenda Mwangi Irungu & Zephania Macharia Wanjiku v Republic

Date Delivered:

01 Jul 2021

Case Class:

Criminal

Court:

High Court at Murang'a

Case Action:

Ruling

Judge(s):

Kanyi Kimondo

Citation:

Mugenda Mwangi Irungu & another v Republic [2021] eKLR

Advocates:

Mr. W. Ongoro holding brief for Mr. Mwaniki for the appellants instructed by Mwaniki Warima & Company Advocates.

Mr. S. Mutinda for the Republic instructed by the Office of the Director of Public Prosecutions

Case History:

[An application for bail pending appeal from the decision of P. M. Kiama, Senior Principal Magistrate, in S.O. Case No. 35 of 2018 at Kangema dated 7th July 2020

Court Division:

Criminal

Advocates:

Mr. W. Ongoro holding brief for Mr. Mwaniki for the appellants instructed by Mwaniki Warima & Company Advocates.

Mr. S. Mutinda for the Republic instructed by the Office of the Director of Public Prosecutions

History Docket No:

S.O. Case No. 35 of 2018

History Magistrate:

P. M. Kiama, Senior Principal Magistrate

History Advocates:

Both Parties Represented

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 MURANG’A

CONSOLIDATED CRIMINAL APPEALS NOS. 17 & 18 OF 2020

MUGENDA MWANGI IRUNGU.......................1

ST

APPELLANT

ZEPHANIA MACHARIA WANJIKU...............2

ND

APPELLANT

VERSUS

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

[An application for bail pending appeal from the decision of P. M. Kiama, Senior Principal Magistrate, in S.O. Case No. 35 of 2018 at Kangema dated 7

th

July 2020]

RULING

1. The appellants were adjudged guilty of

gang defilement

contrary to section 10 of the

Sexual Offences Act

. Each of them was sentenced to

fifteen years’ imprisonment.

2. The particulars were that on 7

th

November 2018 at

[particulars withheld]

in Murang’a County they caused their penises to penetrate the vagina of GWC

[particulars withheld]

a girl aged 16 years.

3. The appellants lodged separate petitions of appeals which have since been consolidated.

4. Pending the hearing and determination of the consolidated appeals, the appellants have presented

notices of motion

pleading for bail. There are depositions sworn on 8

th

October 2020 by their learned counsel,

Mr. Mwaniki Warima

.

5. The appellants submitted that the appeal has overwhelming chances of success. They contended that the evidence of the complainant was unbelievable and devoid of corroboration. In a synopsis, they argued that the key ingredients of the offence were not proved. Regarding the sentences, learned counsel submitted that it was too harsh in all the circumstances of the case.

6. Learned counsel further submitted that a substantial part of the sentence may be served before the hearing and determination of the appeals.

7. The application is

conceded

by the Republic.

8. The legal parameters in an application of this nature were well stated by the Court of Appeal in

Jivraj Shah v Republic

[1986] KLR 605-

If it appears prima facie from the totality of the circumstances that the appeal is likely to be successful on account of some substantial point of law to be urged, and that the sentence or a substantial part of it, will have been served by the time the appeal is heard, conditions for granting bail will exist. The decision is

Somo v Republic

[1972] EA 476

which was referred to by this court with approval in Criminal Application No. NAI 14 of 1986,

Daniel Dominic Karanja v Republic

where the main criteria was stated to be the existence of overwhelming chances of success does not differ from a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed.

9. I decline the invitation to interrogate the full merits of the appeal. That will be the true province of the first appellate court to

re-evaluate

the veracity of the evidence; and, to consider whether the punishment was deserved.

10. The complainant alleged that on the material night, the two appellants came to her grandmother’s house. The 1

st

appellant led her to a farm. She bent by a tree and he penetrated her using his penis which was sheathed in a condom. He then summoned the 2

nd

appellant who was keeping watch at the gate. The 2

nd

appellant took her inside her grandmother’s house and defiled her on the bed. He was interrupted by a knock from the complainant’s sister who is deaf and dumb. The 1

st

appellant also alerted him that there were some people approaching. The appellants fled from the scene.

11. The complainant only disclosed the incident to her mother the following day when she interrogated her about a used condom she found in the compound.

12. From the materials before me, I find that a substantial point of law and evidence arises on two fronts: Firstly, on the

reliability

of the evidence of the complainant; and, secondly, whether on the totality of all the evidence by the prosecution’s four witnesses and the defence, the primary

ingredients

for the offence were proved.

13. Regarding the sentences, it is true that the penal section provided for a

minimum

sentence of fifteen years. The sentence handed down was thus

not

illegal. But the appellate court may still interrogate the sentence in view of the landmark decision of the supreme Court in

Francis Karioko Muruatetu & another v Republic

,

Consolidated Petitions Nos. 15 & 16 of 2015 [2017] eKLR.

14. In the end I find that the points raised in the consolidated appeals are

arguable

and that they disclose

exceptional grounds;

or,

substantial points of law and evidence

. That is

not

to say that the appeals will succeed.

15. Each of the appellants

may

be released upon executing a cognizance in the sum of Kshs 300,000 (three hundred thousands) together with

one

surety of a similar amount. The sureties shall be approved by the Deputy Registrar of this Court.

16. The appellants

must

appear at the mention or hearing of the appeal.

It is so ordered.

DATED, SIGNED

and

DELIVERED

at

MURANG’A

this 1

st

day of July 2021.

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of-

Mr. W. Ongoro holding brief for Mr. Mwaniki for the appellants instructed by Mwaniki Warima & Company Advocates.

Mr. S. Mutinda for the Republic instructed by the Office of the Director of Public Prosecutions.

Ms. Dorcas Waichuhi & Ms. Susan Waiganjo, Court Assistants.