[2022] KEHC 1915 (KLR)
The court held that since the sentence imposed was the mandatory statutory minimum for the offence of defilement under the Sexual Offences Act, neither the trial court nor the appellate court had discretion to impose a lesser or non-custodial sentence. The sentence was therefore lawful and authorized by statute. The...
Source-derived case information.
- Citation
- [2022] KEHC 1915 (KLR)
- Parties
- Appellant: Brian Wabuke Wafula; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E003 of 2021
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- Appeal dismissed; sentence of nine years imprisonment upheld.
- Legal Topics
- Defilement, Sentencing Principles, Mandatory Minimum Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brian Wabuke Wafula
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of nine years imprisonment for defilement was excessive or unlawful.
- 2 Whether the trial court and appellate court had discretion to impose a non-custodial or lesser sentence in light of the mandatory minimum sentence provisions.
Ratio Decidendi
The court held that since the sentence imposed was the mandatory statutory minimum for the offence of defilement under the Sexual Offences Act, neither the trial court nor the appellate court had discretion to impose a lesser or non-custodial sentence. The sentence was therefore lawful and authorized by statute. The appeal against sentence lacked merit and was dismissed.
Court Disposition
Appeal dismissed; sentence of nine years imprisonment upheld.
Orders
- The appeal is dismissed for lack of merit.
- The sentence of nine years imprisonment is upheld.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. E003 OF 2021
BRIAN WABUKE WAFULA......APPELLANT
VERSUS
REPUBLIC................................RESPONDENT
(Being an appeal from the judgement of Hon. A. Odawo, - SRM., dated 21st January 2021, in the CM’S Court at Bungoma, in S.O. Criminal Case No.51 of 2019, Republic vs Brian Wabuke Wafula)
JUDGEMENT
The appellant has appealed against his sentence of nine (9) years imprisonment following his conviction in respect of the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offence Act No. 3 of 2006.
In this court the appellant has filed five grounds in his petition of appeal.
In ground 1 the appellant has stated that he was a first offender.
In ground 2 the appellant has stated that he is remorseful.
In ground 3 the appellant has stated that he was brought up in a poor family background and is the sole breadwinner of his family.
In ground 4 he has stated that the sentence meted out is excessive in the circumstances.
In ground 5 the appellant has requested that the sentence be substituted with a non-custodial sentence.
The submissions of the appellant.
In his written submissions the appellant has submitted as follows. The sentence is harsh and has caused him psychological torture. He is a first offender. He has been rehabilitated. He is the sole bread winner of his family and he is responsible for the education of his sister.
The submissions of the respondent
Counsel for the respondent has supported the sentence because it is the prescribed minimum mandatory sentence.
Counsel has urged the court to dismiss it.
Findings of the court.
This is a first appeal. I have re-evaluated the principles to be followed in respect of sentencing in matters where the sentence imposed is the mandatory statutory minimum. The appeal is only against sentence. It is a mandatory sentence that was imposed by the trial court. That court had no choice in respect of sentencing the appellant to the mandatory sentence of nine years imprisonment.
Furthermore, I also do not have any discretion to interfere with the mandatory statutory minimum sentence that was imposed by the trial court.
In the circumstances, I find that the sentence imposed is authorized by law.
In the premises, I find no merit in the appeal which I hereby dismiss for lacking in merit.
JUDGEMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THROUGH VIDEO CONFERENCE THIS 24TH DAY OF FEBRUARY, 2022
J M BWONWONG’A
JUDGE
In the presence of:-
Mr. Kinyua: Court Assistant
The appellant – present in prison
Ms Mukangu for the Respondent