[2010] KEHC 259 (KLR)
The trial court erred by sentencing the appellant to fifteen years imprisonment for attempted defilement, whereas Section 9(2) of the Sexual Offences Act prescribes a minimum sentence of ten years. The law requires that where a minimum sentence is provided, the court must impose that sentence and not exceed it...
Source-derived case information.
- Citation
- [2010] KEHC 259 (KLR)
- Parties
- Appellant: Joseph Njoroge Kinyanjui; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 125 of 2010
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied
- Judges
- MJA Emukule
- Legal Topics
- Sentencing Principles, Sexual Offences, Minimum Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Njoroge Kinyanjui
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court exceeded the statutory minimum for attempted defilement.
- 2 Whether the sentence of fifteen years was lawful under the Sexual Offences Act.
Ratio Decidendi
The trial court erred by sentencing the appellant to fifteen years imprisonment for attempted defilement, whereas Section 9(2) of the Sexual Offences Act prescribes a minimum sentence of ten years. The law requires that where a minimum sentence is provided, the court must impose that sentence and not exceed it unless the statute allows. The sentence of fifteen years was therefore illegal. The appellate court exercised its discretion to correct the illegality by reducing the sentence to the statutory minimum of ten years, to run from the date of conviction.
Court Disposition
sentence varied
Orders
- The sentence of fifteen years imprisonment is set aside and substituted with a sentence of ten years imprisonment to run from the date of conviction.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPEAL NO. 125 OF 2010
(From original conviction and sentence in Criminal Case No. 1985 of 2009 of the Principal Magistrate's Court at Nyahururu - T. Matheka {P.M.})
JOSEPH NJOROGE KINYANJUI……………………APPELLANT
VERSUS
REPUBLIC…………………….......……………….RESPONDENT
JUDGMENT
The Appellant was charged with the offence of attempted defilement contrary to Section 9(1) of the Sexual Offences Act, 2006 (No. 3 of 2006). He pleaded guilty to the charge and was on his own plea convicted. Upon the facts being narrated by the prosecution, the Appellant pleaded that the facts were correct, and a plea of guilty was confirmed by the trial court. On being asked by the court to mitigate the Appellant said he had "nothing to say".
The punishment for the offence of attempted defilement under Section 9(2) of the Sexual Offences Act is imprisonment for not less than ten years. The Appellant was sentenced to fifteen years. The law is that where a statute provides for a minimum sentence, that is the sentence which the court may impose. That in effect is the requirement of Section 7(1)(b) of the Criminal Procedure Code. The trial court erred in sentencing the Appellant to a term not provided for under the statute. The sentence was illegal.
For those reasons, and in exercise of the court's discretion under Section 348 and Section 354(3)(b) of the Criminal Procedure Code, the sentence of fifteen years is hereby reduced to ten (10) years to run from the date of the Appellant's conviction.
There shall be orders accordingly.
Dated, delivered and signed at Nakuru this 8th day of October 2010
M. J. ANYARA EMUKULE
JUDGE