[2012] KEHC 541 (KLR)
The court held that the sentence of ten years imprisonment imposed on the appellant was the minimum sentence prescribed by section 11(1) of the Sexual Offences Act for the offence of indecent act with a child. The court found that, despite the appellant's plea of guilty, status as a first offender, and mitigating...
Source-derived case information.
- Citation
- [2012] KEHC 541 (KLR)
- Parties
- Appellant: John Kioko Ndambuki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 34 of 2011
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- appeal dismissed; sentence upheld
- Judges
- GMA Dulu
- Legal Topics
- Sexual Offences, Sentencing Guidelines, Indecent Act With Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Kioko Ndambuki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the sentence of ten years imprisonment for indecent act with a child was harsh or excessive.
- 2 Whether the court had discretion to reduce the sentence below the statutory minimum.
Ratio Decidendi
The court held that the sentence of ten years imprisonment imposed on the appellant was the minimum sentence prescribed by section 11(1) of the Sexual Offences Act for the offence of indecent act with a child. The court found that, despite the appellant's plea of guilty, status as a first offender, and mitigating circumstances, it had no discretion to reduce the sentence below the statutory minimum. The conviction was proper, and the sentence was legal and not excessive. Consequently, the appeal on sentence was dismissed and the sentence upheld.
Court Disposition
appeal dismissed; sentence upheld
Orders
- The appeal is dismissed.
- The sentence of ten years imprisonment is upheld.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
High Court at Machakos
Criminal Appeal 34 of 2011 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif][if gte mso 9]><![endif][if gte mso 9]><xml>
Normal 0
false false false
EN-US X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; font-size:10. 0pt;"Times New Roman","serif";} </style> <![endif]
JOHN KIOKO NDAMBUKI ..….…………..…………………...… APPELLANT
VERSUS
REPUBLIC ……………………...............……..………………. RESPONDENT
(Being an appeal from the judgment of the Senior Resident Magistrate A.W Mwangi delivered on 8/11/2010 in Kithimani S.O.A Case No. 18 of 2010)
************************************
(Before George Dulu J)
J U D G M E N T
The appellant John Kioko Ndambuki was charged with the offence of indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on 10th September 2010 in Matungulu District within Eastern Province committed an indecent act with a child B.S intentionally by causing contact between his genital organs with that of B.S a child aged 14 years.
When he was brought before the lower court to answer to the charge on 20th September 2010, he pleaded not guilty. On 18/11/2011, however, after the complainant had testified, he changed his plea to guilty. After the facts were given, he accepted them and was convicted. He was sentenced to serve ten (10) years imprisonment. He has now appealed to this court on sentence. His grounds of appeal are as follows:-
1. That he pleaded guilty to the charge.
2. That the sentence imposed upon him is too harsh and excessive.
3. That he prays the honourable court to consider the sentence imposed as he is a first offender.
4. That he promises not to indulge himself in any law breaking if given another chance.
5. That he prays the honourable court to reduce the sentence imposed upon him or substitute it to a non-custodial one.
At the hearing of the appeal, the appellant submitted that his appeal was to mitigate on sentence. He asked that the sentence be reduced as he had been beaten by the police and his health was deteriorating in custody.
The learned State Counsel Mr Mwenda opposed the appeal. Counsel submitted that the sentence imposed was the minimum sentence for the offence under the Sexual Offences Act.
As a first appellate court, I have perused the record as I am required to do in a first appeal, in order to arrive at my own conclusions and inferences –See Okeno –vs- Republic (1972) EA 32.
In my view, the plea was properly taken. The conviction is therefore proper.
The appellant has appealed on sentence. He says that the sentence was harsh. He was sentenced to serve 10 years imprisonment. He was a first offender. I observe that he was convicted under section 11(1) of the Sexual Offences Act, which provides:-
11 (1) Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than 10 years.
In view of the above legal provisions with regard to the sentence for the offence, 10 years imprisonment is actually the minimum sentence. I agree with the learned State Counsel. Even if there were mitigating factors, the hands of the court were tied. I therefore, find that the sentence imposed was legal and was not excessive.
In the result, I dismiss the appeal and uphold the sentence imposed.
Dated and delivered at Machakos this 5thday of December2012.
George Dulu
Judge
In presence of:-
Appellant present in person
N/A for State
Mutinda – Court Clerk