[2012] KEHC 5392 (KLR)
The court found that the sentence of fourteen years imposed on the appellant was within the statutory maximum for the offence of defilement of an imbecile under Section 146 of the Penal Code. The appellant had pleaded guilty and accepted the facts as read by the prosecution. Although the appellant's medical...
Source-derived case information.
- Citation
- [2012] KEHC 5392 (KLR)
- Parties
- Appellant: Henry Kipkasi Tarus; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 318 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced
- Judges
- MJA Emukule
- Legal Topics
- Defilement, Sentencing Discretion, Plea of Guilty, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Kipkasi Tarus
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant upon his plea of guilty was lawful and appropriate.
- 2 Whether the appellant's medical condition warranted a reduction of sentence.
Ratio Decidendi
The court found that the sentence of fourteen years imposed on the appellant was within the statutory maximum for the offence of defilement of an imbecile under Section 146 of the Penal Code. The appellant had pleaded guilty and accepted the facts as read by the prosecution. Although the appellant's medical conditions were not supported by documentary evidence, the court took his word regarding his health status. Considering the appellant's plea for leniency, his remorse, and his serious health conditions, the court exercised its discretion to reduce the sentence from fourteen years to twelve years, to run from the date of conviction and sentence. The conviction was upheld as proper, but...
Court Disposition
sentence reduced
Orders
- The appellant's term of imprisonment is reduced from fourteen (14) years to twelve (12) years to run from the date of conviction and sentence.
Full Case Text
Judgment text and source record
21 paragraphs
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(From original conviction and sentence in Criminal Case No. 520 of 2004 of the Principal Magistrate\'s Court at Kapsabet - S. M. Shitubi, SRM)
HENRY KIPKASI TARUS………………......………………….…………………………..APPELLANT
VERSUS
REPUBLIC……………………………………………………...………………………..RESPONDENT
JUDGMENT
Henry Kipkasi Tarus was charged with the offence of defilement of an imbecile contrary to Section 146 of the Penal Code(Cap. 63, Laws of Kenya).He pleaded guilty to the charge, and was convicted on his own plea. He also accepted the facts when read to him by the prosecution.
In his original appeal, the appellant raised five grounds of appeal, the most important of which was that the charge was defective. However at the hearing of the appeal on 6th March 2012 the appellant in his oral submissions abandoned all those grounds.Instead, the appellant asked the court to exercise leniency on him. He suffers from both Tuberculosis and cancer of the rectum and has had four operations and was scheduled for another on 17th April 2012. He is not sure whether he will survive. If he survives, he will like to go home, and try alternative medicine for his treatment.
There were no records of treatment of the appellant for either of the diseases he mentioned. However, taking the appellant at his word, under Section 348 of the Criminal Procedure Code,(Cap. 75, Laws of Kenya),an appeal on a conviction upon a plea of guilty is only permissible on the grounds of legality and extent of the sentence.
The punishment for the offence of defilement of an idiot or imbecile is imprisonment with hard labour for fourteen (14) years. That term is not the minimum but the maximum. The Appellant was convicted and sentenced on 15th March 2004, that is just 8 years. The appellant has another 6 years or so to serve unless he has earned remission under the Prison Act,(Cap. 90, Laws of Kenya).
The term of imprisonment was within the lower courts\' discretion, and was quite proper in light of the victim of the offence, an imbecile, a person who is incapable of consenting to the act, even she were not a minor. This was a case of a minor who was 12 years of age.After the assault she came out of the forest carrying pants in her hands, followed by the Appellant. The Appellant mumbled words to the effect that she had agreed. An imbecile or an idiotic person is by definition a person who is mentally retarded, and does not have the capacity to consent to anything. This makes the appellant\'s crime the more heinous.
The appellant did however appear remorseful. His infection with both Tuberculosis and cancer of the rectum are painful experiences. He has had four surgical operations. He is apprehensive about his survival in the next 5th operation. He asked for a reduction of his term.
Whereas I agree with Miss Idagwa\'s learned State Counsel\'s submission that the appellant was properly convicted and sentenced, in light of his plea for leniency and mercy by this court, I would reduce the appellant\'s term of imprisonment of 14 years to twelve (12) years to run from the date of the conviction and sentence.
There shall be an order accordingly.
Dated, signed and delivered at Nakuru this 30th day of March, 2012
M. J. ANYARA EMUKULE
JUDGE