[2016] KEHC 8769 (KLR)
The court held that the sentence for defilement under section 8(1) and (3) of the Sexual Offences Act is mandatory, requiring a minimum of twenty years imprisonment for offenders where the victim is between twelve and fifteen years old. The complainant's age was sufficiently proved by her testimony and the...
Source-derived case information.
- Citation
- [2016] KEHC 8769 (KLR)
- Parties
- Appellant: Charles Ouma Damba; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 8 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Defilement, Mandatory Sentencing, Sexual Offences Act, Proof of Age
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Ouma Damba
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed for defilement under section 8(1) and (3) of the Sexual Offences Act is mandatory and allows for judicial discretion.
- 2 Whether the age of the complainant was sufficiently proved to justify the sentence imposed.
Ratio Decidendi
The court held that the sentence for defilement under section 8(1) and (3) of the Sexual Offences Act is mandatory, requiring a minimum of twenty years imprisonment for offenders where the victim is between twelve and fifteen years old. The complainant's age was sufficiently proved by her testimony and the production of her birth certificate, confirming she was just above twelve years at the time of the offence. The appellant's personal circumstances, remorse, or reformation could not override the statutory mandate. Consequently, the appellate court had no discretion to reduce the sentence, and the appeal was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMA BAY
CRIMINAL APPEAL NO. 8 OF 2016
BETWEEN
CHARLES OUMA DAMBA …..….………….......…………..………………………………... APPELLANT
AND
REPUBLIC …………………………………………………….………………………………RESPONDENT
(Being an appeal from the original conviction and sentence of Hon.S.O.Ongeri, SRM in Senior Resident Magistrates Court at Mbita in Criminal Case No. 48 of 2015 dated 22nd June 2015)
JUDGMENT
The appellant CHARLES OUMA DAMBAwas charged and convicted of the offence of defilement contrary to section 8 (1)and(3)of theSexual Offences Act, 2006. The particulars of the charge were that on 4th March 2014 at [particulars withheld] Beach in Gwassi South Location within Suba District within Homa Bay County, he intentionally and unlawfully caused his penis to penetrate the vagina of COD, a child aged 12 years. He was convicted and sentenced to 20 years imprisonment.
The thrust of his Petition of Appeal filed on 16th February 2016 is that he wishes this court to reconsider his sentence as he remorseful, has dependants who have suffered and continue to suffer while he is in prison and that he is of ill health. He also states that he has undergone spiritual transformation and vocational training and that he is now reformed hence he should be considered for a non-custodial sentence. He has also filed written submissions in which he reiterates the grounds for this court to intercede and reduce the sentence.
Mr Oluoch, learned counsel for the respondent, submits that the penalty for defilement under the Sexual Offences Act is mandatory and that the court has no discretion in imposing the same. He therefore contends that the appellate court cannot review the lawful sentence imposed.
This appeal is essentially on the sentence imposed by the subordinate court. The appellant was charged with an offence under section 8 (1) and (3) of the Sexual Offences Act whichprovides:-
8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
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(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
In the written submissions, the appellant contended that the age of the child was not proved. Apart being an essential element of proof of the offence of defilement, the proof of age of the child is necessary to determine the appropriate sentence. Proof of age is a question of fact. In this case, the complainant testified on oath that she was 12 years old while the investigating officer (PW 6) produced the birth certificate which showed that she was born on 21st February 2002 which means she was just above 12 years when the offence was committed.
The sentence provided for defilement where the age of the child is 12 years under section 8 (1) (3) of the Sexual Offences Act is mandatory as the words used are, "for a term not less than twenty years".The law is well settled that where a mandatory sentence is prescribed in law, the Court cannot impose a sentence other than the prescribed penalty.
Accordingly the appeal is dismissed.
DATED and DELIVERED at HOMA BAY this 23rd day of May 2016.
D.S. MAJANJA
JUDGE
Appellant in person.
Mr Oluoch, Senior Assistant Director of Public Prosecutions, instructed by the Office of Director of Public Prosecutions for the respondent.