(Being an Appeal from the conviction in criminal case number S.O No.2 2006 by Hon D Odhiambo (SRM) on 27th September 221 at Shanzu spm’s court.)
- The Appellant was arrested , charged, convicted and eventually sentenced to serve 20 years imprisonment for the offence of defilement country to Section 8 (1) as read with 8(3) of the sexual offences act No.2 2006 by Hon D Odhiambo (SRM) on 27th September 221 at Shanzu spm’s court.
- Being aggrieved with that court’s decision he decided to appeal to the high court and he filed a memorandum of appeal.
- Later on The Appellant amended his appeal and he reduced it to 3 grounds to wit;
- That the learned trail magistrate failed to consider that, the issue of mandatory sentences is Sexual Offences Act was ruled non-Constitutional as declared in the new jurisprudence. (sic)
- That the learned trial magistrate failed to consider that mitigation was part of a trial and despite him rendering his mitigation in the current case, it was not considered.
- That the learned trial magistrate failed to note that the circumstances of the case had a clear demonstration on prospect of aggravating factor.
- He cited the case of Amedi Omurunga Vs DPP Petition No 28 of 2016 in the High court of Kenya at Malindi which was decided on 25th July 2019 by Hon. Justice R Nyakundi (J) The judge stated that; the twenty years sentence originating from the mandatory minimum sentence under Section 8 (3) of the Sexual Offences Act is set aside and in place with the petitioner shall serve 13 years sentence with effect from …when he was in remand custody.
- He also cited the case of Evans Wanjala Wanyonyi Vs Republic (2019) e KLR on the legality of the mandatory minimum sentence under the Sexual Offence act where the court of Appeal, Judges substituted a 20 years imprisonment term with 10 years imprisonment term for the appellant who had been convicted of defiling a 14 years old girl .
- The Applicant also said that another prejudice was occasioned when the trial court remained silent on his mitigating factor. That at page 38 lines 1-6; he said’
“Mitigation: I have a family with a wife and three kids, who depend on me, my mother is also sick and she depends on me. I plead for leniency and non-custodial sentence . I plead that the sentence begins from the time I was arrested and taken to the police station”.
Court: Mitigation considered accused sentenced to 20 years in prison, right to appeal 1 days.
He argued this was not a proper consideration of the mitigation.
- The court has considered the grounds raised.
- Indeed, the dust is yet to settle on the resentencing of offenders when there are fixed minimum or maximum terms.
- The directions given by the Apex court in what has been commonly referred to as Muruatetu 2 and the recent decision in Joshua Gichuki Maina have put a halt on the many Applications for resentencing. Those decisions were given after the decisions cited by the Applicant and the decisions by the Supreme court are binding. That takes care of the first ground of Appeal.
- As regards the mitigation and aggravating circumstances, I have considered the evidence and the Judgment. The Appellant had made a habit of defiling the minor who was the niece. In fact he was lucky not to have been charged with the offence of incest which would have called or a stiffer sentence.
- A child was conceived and the Appellant continued to deny until through the DNA test , he was exposed him for what he is .; A child molester.
- He is belatedly apologizing but the court finds that since the offence was continuous, the sentence meted was appropriate.
- Accordingly, the court finds shat the appeal on the sentence has no merit. It is dismissed . The Appellant to complete the sentence.
13.It is so ordered
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 26TH DAY OF SEPTEMBER 2024
WENDY KAGENDO
JUDGE
IN THE PRESENCE OF
MAINA FOR THE RESPONDENT
APPELLANT IN PERSON
BEBORA COURT ASSISTANT