[2015] KEHC 8488 (KLR)
The court held that since section 8(3) of the Sexual Offences Act, 2006 prescribes a mandatory minimum sentence of 20 years imprisonment for the offence of defilement of a child aged between 12 and 15 years, the trial court had no discretion to impose a lesser sentence. The appellant's personal circumstances,...
Source-derived case information.
- Citation
- [2015] KEHC 8488 (KLR)
- Parties
- Appellant: F A O; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 105 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; sentence affirmed
- Judges
- DAS Majanja
- Legal Topics
- Defilement, Sentencing, Sexual Offences Act, Mandatory Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
F A O
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 20 years imprisonment imposed for defilement was lawful and appropriate.
- 2 Whether the appellant was entitled to a non-custodial sentence as a first offender and sole breadwinner.
Ratio Decidendi
The court held that since section 8(3) of the Sexual Offences Act, 2006 prescribes a mandatory minimum sentence of 20 years imprisonment for the offence of defilement of a child aged between 12 and 15 years, the trial court had no discretion to impose a lesser sentence. The appellant's personal circumstances, including being a first offender and sole breadwinner, could not override the statutory requirement. The sentence was therefore lawful and could not be interfered with by the appellate court.
Court Disposition
appeal dismissed; sentence affirmed
Orders
- The sentence of 20 years imprisonment is affirmed.
- The appeal is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMA BAY
Criminal Appeal No. 105 Of 2014
(Formerly Kisii Hccra No. 65 Of 2012)
Between
F A O.…………….. Appellant
And
Republic ………RESPONDENT
(Being an appeal from the original conviction and sentence of Hon. G. M. Ong’ondo, SPM in Senior Principal Magistrates Court at Oyugis in Criminal Case No. 3 of 2012 dated 8th March 2012)
JUDGMENT
The appellant, F A O, was charged and convicted on her own plea of guilty of the offence of defilement contrary to sections 8(1) and (3) of the Sexual Offences Act, 2006. The particulars of the charge were that on 27th February 2012 at [particilars withheld] Location in Rachuonyo South District within Homa Bay County, she caused her vagina to be penetrated by the penis of DO aged 12 years. She was sentenced to 20 years imprisonment.
According to the petition of appeal filed on 12th March 2012 she appeals against her sentence. She contends that she was a first offender and was remorseful and was thus entitled to the benefit of a non-custodial sentence; that she was convicted without the any witnesses being called; that the child was friend of her brother-in-law’s son and had spent the night severally in her home; that her plight as a mother and sole bread winner of two young children was not considered and that the 20 year sentence imposed on her was unduly hard and excessive.
Mr Oluoch, learned counsel for the respondent, submitted that there was no error in the sentence passed as the sentence imposed was the mandatory sentence provided for by the law.
Section 8(3) of the Sexual Offence Act, 2006 provides for a mandatory sentence of 20 years in the event of a conviction for the defilement of a child aged between age 12 and 15 years. As the prescribed sentence is mandatory, I cannot intervene in the sentence which is legal.
The sentence is affirmed. The appeal is dismissed.
DATED and DELIVERED at HOMA BAY this 9th day of July 2015.
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.