[2014] KEHC 6759 (KLR)
The court found that, although the appellant pleaded guilty to attempted rape and the facts supported the conviction, the sentence of fifteen years imprisonment was harsh given that the appellant was a first offender and the attempt did not result in actual penetration or further harm as the complainant managed to...
Source-derived case information.
- Citation
- [2014] KEHC 6759 (KLR)
- Parties
- Appellant: Elijah Maghanga Mzawa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 275 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- GO Shikwe
- Legal Topics
- Sexual Offences, Attempted Rape, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Maghanga Mzawa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of fifteen years imprisonment for attempted rape was harsh in the circumstances of the case.
- 2 Whether the appellant's plea of guilty and status as a first offender warranted a reduction of sentence.
Ratio Decidendi
The court found that, although the appellant pleaded guilty to attempted rape and the facts supported the conviction, the sentence of fifteen years imprisonment was harsh given that the appellant was a first offender and the attempt did not result in actual penetration or further harm as the complainant managed to escape. The minimum sentence prescribed by law is five years, and the circumstances did not justify a sentence above the minimum. Therefore, the court exercised its discretion to reduce the sentence to the statutory minimum of five years imprisonment.
Court Disposition
appeal_allowed_in_part
Orders
- The sentence of fifteen years imprisonment is set aside.
- The appellant shall serve five years imprisonment.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 275 OF 2011
ELIJAH MAGHANGA MZAWA ….............….. APPELLANT
VERSUS
REPUBLIC ……….……..............................…RESPONDENT
(From original Conviction and Sentence in Criminal Case No. 317 of 2009 of the Senior Resident Magistrate's Court at Wundanyi– HON. F. MUNYI - RM)
JUDGMENT
The Appellant was Convicted and Sentenced to Fifteen (15) years for the offence of attempted rape contrary to Section 4 of the Sexual Offences Act No. 3 of 2006. He pleaded guilty to the charge in Swahili language which he told the Court he understood. The facts were read to him and he stated that they were correct and he was subsequently convicted and sentenced to fifteen (15) years.
Section 4 of the Sexual Offences Act provides,
“Any person who attempts to unlawfully and intentionally commit an act which causes penetration with his or her genital organs is guilty of the offence of attempted rape and is liable upon conviction for imprisonment for a term which shall not be less than five years but which may be enhanced to imprisonment for life”
It is noted in this case that the accused/appellant had been treated as a first offender. He had attempted to have sex with the complainant, after ensuring that her husband was away at a nearby shopping centre. He had held complainant by her lesso and she managed to escape his clutches. He did not manage to proceed any further. I find the sentence of fifteen (15) years imprisonment to be harsh in the circumstances of this case.
I accordingly reduce the imprisonment term to five (5) years imprisonment. The Appellant will now serve five (5) years imprisonment.
To that extent only does this appeal succeed.
Judgment delivered dated and signed this 27thday of February, 2014.
….................
M. MUYA
JUDGE
27TH FEBRUARY, 2014
In Open Court in the presence of:-
Learned State Counsel Miss Fundi
The appellant present
Court clerk Musundi