[2019] KEHC 8166 (KLR)
The court held that section 11(1) of the Sexual Offences Act prescribes a mandatory minimum sentence of 10 years for the offence of committing an indecent act. The trial court imposed the statutory minimum, and the appellate court has no discretion to interfere with such a sentence. The appeal was therefore...
Source-derived case information.
- Citation
- [2019] KEHC 8166 (KLR)
- Parties
- Appellant: Dalmas Chemonges Ndiwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 29 of 2015
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; sentence affirmed
- Judges
- DAS Majanja
- Legal Topics
- Sexual Offences, Sentencing, Indecent Act, Mandatory Minimum Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dalmas Chemonges Ndiwa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 10 years' imprisonment imposed on the appellant for committing an indecent act was lawful and subject to judicial discretion.
Ratio Decidendi
The court held that section 11(1) of the Sexual Offences Act prescribes a mandatory minimum sentence of 10 years for the offence of committing an indecent act. The trial court imposed the statutory minimum, and the appellate court has no discretion to interfere with such a sentence. The appeal was therefore dismissed, and the sentence affirmed, with the clarification that the sentence shall run from 6th May 2013.
Court Disposition
appeal dismissed; sentence affirmed
Orders
- The appeal is dismissed.
- The sentence of 10 years' imprisonment is affirmed and shall run from 6th May 2013.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
CORAM: D.S. MAJANJA J.
CRIMINAL APPEAL NO. 29 OF 2015
BETWEEN
DALMAS CHEMONGES NDIWA.......APPELLANT
AND
REPUBLIC....................................... RESPONDENT
(Being an appeal against the original conviction and sentence of Hon. M. Njagi, SRM dated 18th February 2015 at the Magistrates Court at Eldoret in Criminal Case No. 1635 of 2013)
JUDGMENT
1. The appellant, DALMAS CHEMONGES NDIWA, was convicted of the offence of committing an indecent act contrary to section 11(1) of the Sexual Offences Act (“the Act”). The particulars of the offence were that on 4th May, 2013 at Kaptagat Location in Keiyo South District within Elgeyo Marakwet County, he unlawfully allowed his penis to come into contact with the vagina of HJK, a girl aged 12 years.
2. The appellant relied on his amended grounds of mitigation in which he contested the sentence of 10 years’ imprisonment imposed on him. He stated that he has now been rehabilitated and should now be released.
3. Under section 11(1) of the Act, the mandatory minimum sentence for the offence of committing an indecent act is 10 years. The court does not have any discretion to interfere with the sentence.
4. Since the appellant was given the statutory minimum. I dismiss the appeal and affirm the sentence save that the sentence of 10 years’ imprisonment shall run from 6th May 2013.
DATED and DELIVERED at ELDORET this 23rd day of APRIL 2019.
D.S. MAJANJA
JUDGE
Appellant in person.
Ms Mokua, Prosecution Counsel, instructed by the Director of Public Prosecutions for the respondent.