[2015] KEHC 5649 (KLR)
The court held that Section 20(1) of the Sexual Offences Act prescribes a mandatory minimum sentence of ten years imprisonment for the offence of incest, thereby removing any discretion from the court to reduce or substitute the sentence, regardless of mitigating circumstances. The applicant's plea for mercy and...
Source-derived case information.
- Citation
- [2015] KEHC 5649 (KLR)
- Parties
- Appellant: Barnabas Ngondi Njuki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 57 of 2014
- Procedural Posture
- Criminal Appeal / Ruling on Withdrawal of Appeal and Sentence Review Request
- Outcome
- application for sentence review dismissed; sentence of ten years imprisonment upheld
- Judges
- FN Muchemi
- Legal Topics
- Incest Offence, Sentencing Guidelines, Sexual Offences Act, Minimum Mandatory Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Barnabas Ngondi Njuki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Withdrawal of Appeal and Sentence Review Request
Legal Issues
- 1 Whether the court has discretion to reduce or substitute the mandatory minimum sentence for incest under Section 20(1) of the Sexual Offences Act.
- 2 Whether the applicant's mitigation can justify a review of sentence below the statutory minimum.
Ratio Decidendi
The court held that Section 20(1) of the Sexual Offences Act prescribes a mandatory minimum sentence of ten years imprisonment for the offence of incest, thereby removing any discretion from the court to reduce or substitute the sentence, regardless of mitigating circumstances. The applicant's plea for mercy and personal circumstances could not override the statutory minimum. The sentence imposed by the trial magistrate was lawful, and there was no legal basis for the High Court to interfere with or review the sentence. Consequently, the application for sentence review was dismissed and the ten-year imprisonment was upheld.
Court Disposition
application for sentence review dismissed; sentence of ten years imprisonment upheld
Orders
- The application to review the sentence is dismissed.
- The sentence of ten years imprisonment is upheld.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL APPEAL NO. 57 OF 2014
BARNABAS NGONDI NJUKI.................................APPELLANT
VERSUS
REPUBLIC...........................................................RESPONDENT
(An Appeal from the Sentence and Conviction of Ag. Senior Resident Magistrate Siakago in Criminal Case No. 650 of 2013 on 26th September, 2014)
R U L I N G
The appellant lodged this appeal against the judgment of the Ag. Senior Resident Magistrate Siakago. He was charged and convicted of the offence of incest contrary to Section 20(1) of the Sexual Offences Act. He was sentenced to serve ten (10) years imprisonment.
During the time of hearing the appeal, the appellant informed the court that he was abandoning his appeal. He said he wanted to make mitigation regarding sentence with a view of having it reduced or substituted with a non custodial sentence. The appeal was therefore marked as withdrawn.
On withdrawing of the appeal, this court accepted the written mitigation on sentence. The request for the applicant does not fall under Section 362 and 364 of the Criminal Procedure Code. He is not faulting the sentence imposed but states that he is pleading for the mercy of the court giving two reasons; that he is a pauper; that it was his first time to appear before any court of law for any offence; and that he earns his living as a casual labourer.
Section 20(1) provides that any person convicted of the offence of incest is liable to imprisonment for a term of not less than 10 years. The wording of the section takes away the discretion of the court in sentencing which is a common feature running across the board of the Sexual Offences Act.
The trial magistrate on conviction would not have given the applicant any term less than 10 years. This court finds itself in a similar predicament. The sentence is lawful under the law and this court cannot interfere with it.
I therefore decline to grant the application to review sentence by the applicant. It is hereby dismissed and of ten (10) years imprisonment upheld.
DELIVERED, SIGNED AND DATED AT EMBU THIS 3RD DAY OF MARCH, 2015.
F. MUCHEMI
JUDGE
In the presence of:-
Applicant present in person
Ms. Matere for State
F. MUCHEMI
JUDGE