(From the conviction and sentence in Sexual Offence Case No. E015 of 2022 at Taveta Law Courts delivered on 30th May 2022 by Hon. D. M. Ndungi (PM)
- The appellant was convicted on his own plea for attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act, the particulars of which being that on 25th May 2022 at 11:00hours at Kiemeri village in Taveta Sub County of Taita Taveta County unlawfully and intentionally attempted to cause his penis to penetrate the vagina of P.P.L a child aged 13 years, who is mentally challenged.
- On conviction, he was sentenced to 10 years imprisonment.
- The appellant has now come to this court for sentence review, which is an appeal on sentence.
- The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by the appellant as well as the submissions filed by the Director of Public Prosecutions. I note that the Director of Public Prosecutions has made submissions both on conviction and sentence.
- I have myself perused the trial court record, and find that the plea of guilty was properly recorded.
- With regard to sentence, 10 years imprisonment is the minimum statutory sentence under the Sexual Offences Act. Though the appellant pleaded guilty, the Magistrate did not have a choice of a lesser punishment, as the appellant was an adult at the time he committed the offence and the time of sentencing. The sentence should however have commenced on 26th May 2022 when the appellant was arrested, in view of the provisions of Section 333(2) of the Criminal Procedure Code (Cap.75).
- I thus uphold the sentence of ten (10) years imprisonment but order that the prison term will run from 26th May 2022 when the appellant was arrested. Right of appeal 14 days explained.
Dated, signed and delivered this 17th day of April 2024 in open court at Voi.