[2018] KEHC 1529 (KLR)
The sentence imposed on the appellant was the mandatory minimum sentence prescribed by Section 8(3) of the Sexual Offences Act for defilement of a child aged between twelve and fifteen years. The trial magistrate had no discretion to impose a lesser sentence. There was no demonstration that the trial court acted on...
Source-derived case information.
- Citation
- [2018] KEHC 1529 (KLR)
- Parties
- Appellant: Julius Cheruiyot Bii; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 60 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- LN Mutende
- Legal Topics
- Defilement, Sentencing Principles, Sexual Offences Act, Mandatory Minimum Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Cheruiyot Bii
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed for defilement was lawful and appropriate under the Sexual Offences Act.
- 2 Whether the trial court had discretion to impose a sentence lower than the statutory minimum.
Ratio Decidendi
The sentence imposed on the appellant was the mandatory minimum sentence prescribed by Section 8(3) of the Sexual Offences Act for defilement of a child aged between twelve and fifteen years. The trial magistrate had no discretion to impose a lesser sentence. There was no demonstration that the trial court acted on wrong principles, overlooked material factors, or that the sentence was manifestly excessive. Consequently, there was no legal basis to interfere with the sentence, and the appeal on sentence lacked merit.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CRIMINAL APPEAL NO. 60 OF 2017
JULIUS CHERUIYOT BII...................................APPELLANT
VERSUS
REPUBLIC.....……................................................RESPONDENT
(Being an Appeal from Original Conviction and Sentence inMolo Chief Magistrate’s Criminal Case No. 2092 of 2014byHon. S. Wahome, C.M.on20/06/17).
J U D G M E N T
1. Julius Cheruiyot Bii, the Appellant, was charged with the offence of defilement contrary to Section 8 (1) (3) of the Sexual Offences Act, No. 3 of 2006. The Complainant was a child aged 13 years.
2. After being taken through full trial he was convicted and sentenced to twenty (20) years imprisonment.
3. Aggrieved, he appealed against the conviction and sentence but at the hearing of the appeal, he abandoned the appeal on conviction and mitigated on sentence. He urged the court to reduce it to the term served and take into consideration the period he was in custody.
4. The state through learned counsel, Mr. Omutelema opposed the appeal. He urged that the sentence meted out was the minimum sentence provided for the offence.
5. In the case of Ogolla S/o Owuor (1954) E.A. 270 it was stated that:
“The court does not alter a sentence unless the trial judge has acted upon wrong principles or overlooked some material factors. To this we would add a third criterion namely, that the sentence is manifestly excessive in view of the circumstances of the case”
6. Section 8 (3) of the Sexual Offences Act provides thus:
“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty year.”
7. The sentence that was imposed is the mandatory minimum sentence provided for the offence, therefore, the learned magistrate had no discretion of passing a lower sentence than what was meted out.
8. In the result, the appeal is devoid of merit and is dismissed.
Dated, Signed and Delivered at Nakuru this 13th day of December, 2018.
L.N. MUTENDE
JUDGE