[2011] KEHC 1196 (KLR)
The court held that the sentence imposed by the trial magistrate was the minimum mandatory sentence prescribed by law for the offence of attempted defilement under Section 9(1) as read with (2) of the Sexual Offences Act No. 3 of 2006. The trial magistrate had no discretion to impose a lesser sentence. Consequently,...
Source-derived case information.
- Citation
- [2011] KEHC 1196 (KLR)
- Parties
- Appellant: Ali Mohammed Jimmy; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 88 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- LA Achode
- Legal Topics
- Sexual Offences, Sentencing Principles, Mandatory Minimum Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Mohammed Jimmy
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of ten years imprisonment for attempted defilement was harsh and excessive.
- 2 Whether the trial magistrate had discretion to impose a lesser sentence than the statutory minimum.
Ratio Decidendi
The court held that the sentence imposed by the trial magistrate was the minimum mandatory sentence prescribed by law for the offence of attempted defilement under Section 9(1) as read with (2) of the Sexual Offences Act No. 3 of 2006. The trial magistrate had no discretion to impose a lesser sentence. Consequently, the appellate court found no basis to interfere with the sentence, as it was lawful and in accordance with the statutory requirements.
Court Disposition
appeal dismissed
Orders
- The appeal against sentence is dismissed.
- The sentence of ten years imprisonment imposed by the trial court is upheld.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
HIGH COURT CRIMINAL APPEAL NO. 88 OF 2009
ALI MOHAMMED JIMMY ………………………...........………..APPELLANT
VERSUS
REPUBLIC ……………………………………………………RESPONDENT
JUDGMENT
Ali Mohamed Jimmy, the Appellant before the court was convicted on his own plea of guilty by a Senior Resident Magistrate court at Makadara on the 4th February 2009, for the offence of attempted defilement contrary to Section 9(1)as read with(2) of the Sexual Offences Act No. 3 of 2006. He was sentenced to serve ten years imprisonment.
Being aggrieved by the sentence meted out by the trial magistrate for reasons that it was harsh and excessive the Appellant lodged an appeal on 9th March 2009.
His appeal is predicted on five grounds of appeal namely that:
1. He is a first offender;
2. He is a youth depended upon by the nation for development and leadership;
3. He committed the offence while under the influence of alcohol and out of his common senses;
4. He has learnt from his mistake;
5. He was enrolled in a youth group in his constituency set to benefit from government initiated youth enterprise fund.
The sixth ground was actually a summary of his prayers that the sentence be reduced and in the alternative a non custodial sentence be imposed.
The State through Mrs. Mwanza opposed the application on the grounds that the Appellant was charged and convicted under Section 9(1) as read with (2) of the Sexual Offences Act No. 3 of 2006 and that the sentence meted out to him was the minimum mandatory sentence provided for upon conviction under the said Section.
Section 9(1)of the said Act reads;
“A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.”
Sub Section (2) provides:
“A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.”
From the reaching of the law therefore the trial magistrate had no lee way to impose a term of imprisonment other than one that was ten years or more.
The court therefore agrees with the State Counsel and will not interfere with the sentence of the lower court.
L. A. ACHODE
JUDGE
13th October 2011
This judgment was written signed and delivered in court and on the spot in the presence of the Appellant and Mrs. Mwanza for the State.
L. A. ACHODE
JUDGE
13th October 2011
Appellant: I am satisfied with the court’s explanation.
L. A. ACHODE
JUDGE
13th October 2011
Signed dated and delivered in open court this thirteenth day of
October, 2011.
L. A. ACHODE
JUDGE
13th October 2011