[2018] KEHC 4734 (KLR)
The trial court imposed a sentence of 15 years imprisonment for the offence of committing an indecent act with a child, contrary to section 11(1) of the Sexual Offences Act. The minimum sentence prescribed by law is 10 years. The trial magistrate did not provide any reasons or identify aggravating factors to justify...
Source-derived case information.
- Citation
- [2018] KEHC 4734 (KLR)
- Parties
- Appellant: Benard Mokaya Mose; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 81 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- DAS Majanja
- Legal Topics
- Sentencing Principles, Sexual Offences, Indecent Act, Minimum Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Benard Mokaya Mose
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in sentencing the appellant to 15 years imprisonment instead of the statutory minimum of 10 years for an indecent act under section 11(1) of the Sexual Offences Act.
Ratio Decidendi
The trial court imposed a sentence of 15 years imprisonment for the offence of committing an indecent act with a child, contrary to section 11(1) of the Sexual Offences Act. The minimum sentence prescribed by law is 10 years. The trial magistrate did not provide any reasons or identify aggravating factors to justify the enhancement of the sentence beyond the statutory minimum. The appellate court found that the absence of such reasons constituted an improper exercise of sentencing discretion. Accordingly, the High Court allowed the appeal on sentence and reduced the sentence to the statutory minimum of 10 years imprisonment, effective from the original date of sentencing.
Court Disposition
appeal_allowed_in_part
Orders
- The appeal on sentence is allowed.
- The sentence is reduced to 10 years imprisonment from 14th November 2012.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CRIMINAL APPEAL NO. 81 OF 2013
BENARD MOKAYA MOSE........................APPELLANT
VERSUS
REPUBLIC...............................................RESPONDENT
(Appeal from the original conviction and sentence of Hon. A.C.A Onginjo – CM
dated 14th November 2012 at the Chief Magistrate’s Court
at Kisii in Criminal Case No. 1949 of 2012)
JUDGMENT
1. The appellant, BENARD MOKAYA MOSE, pleaded guilty to the offence of causing an indecent act contrary to section 11(1) of the Sexual Offences Act (“the Act”). The particulars of the charge were 12th November 2012 in Kisii Central District of Kisii County, he committed an indecent act with CM, by rubbing his penis against the buttocks of CM. He was sentenced to 15 years imprisonment.
2. The minimum sentence under section 11(1) of the Act is 10 years imprisonment. In the sentencing notes the trial magistrate did not give any reason why it was enhanced to 15 years imprisonment hence I find that the trial court did not exercise its discretion based on any factors that would aggravate the minimum sentence.
3. As the appellant only contests the sentence, I allow the appeal and reduce the sentence to 10 years imprisonment from the date of the sentence that is 14th November 2012.
Dated and delivered at Kisii this 2nd day of August 2018.
D.S MAJANJA
JUDGE
Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions.
Appellant in person.