[2021] KEHC 5021 (KLR)
The court found that the appellant, having been convicted of an indecent act with a child aged three years, committed a grave and brutal offence against a highly vulnerable victim. The trial magistrate had already exercised leniency by convicting on the alternative charge due to lack of evidence of full penetration....
Source-derived case information.
- Citation
- [2021] KEHC 5021 (KLR)
- Parties
- Appellant: Maalim Ramadhan; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 17 of 2020
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal and application for re-sentencing dismissed. Sentence of 10 years imprisonment upheld.
- Legal Topics
- Sexual Offences, Sentencing Principles, Indecent Act With Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maalim Ramadhan
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 10 years imprisonment for the offence of indecent act with a child was appropriate and lawful.
- 2 Whether the appellant was entitled to a revision of sentence.
Ratio Decidendi
The court found that the appellant, having been convicted of an indecent act with a child aged three years, committed a grave and brutal offence against a highly vulnerable victim. The trial magistrate had already exercised leniency by convicting on the alternative charge due to lack of evidence of full penetration. The law prescribes a minimum sentence of ten years for the offence, and the circumstances did not warrant any reduction. The appellate court therefore upheld the sentence as both lawful and appropriate, dismissing the appeal and the application for re-sentencing.
Court Disposition
Appeal and application for re-sentencing dismissed. Sentence of 10 years imprisonment upheld.
Orders
- The appeal is dismissed.
- The application for re-sentencing is dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT VOI
CRIMINAL APPEAL NO. 17 OF 2020
MAALIM RAMADHAN………………………………………………APPELLANT
VERSUS
REPUBLIC………………...…………………………………………RESPONDENT
(An appeal from the judgment of Hon. Khapoya S. Benson Principal Magistrate, delivered on 20th September 2019 in Taveta Principal Magistrate’s Court Sexual Offence Case No. 2 of 2019).
J U D G M E N T
1. The Appellant appealed against sentence of 10 years imprisonment in Taveta Magistrates Court Sexual Offence Case No. 2 of 2019 which was passed by Hon. Khapoya PM on 20th September 2019 after the appellant was found guilty and convicted on even date offence of indescent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
2. The appellant filed his petition with 5 grounds of appeal on 9th March 2020 but when he came to court on 7th June 2021 for hearing of his appeal he requested to have appeal on conviction to be withdrawn and he prayed that the court revises his sentence.
3. I think that was wise because looking at the records of the lower court the trial Magistrate found her guilty of the alternative instead of the principal charge for reasons the complainants hymen was not broken and yet there was overwhelming evidence there was partial penetration of the appellants genital organ unto the genital organ of the complainant and when he was found he was wiping blood that came from the child’s genitalia due to him forcing himself on the 3 years old child.
4. The appellant conducted himself in a brutal manner against a vulnerable child of 3 years. I do therefore find that he deserved maximum available punishment. The sentence of ten years is the minimum. I uphold the sentence and dismiss both appeal and application for re-sentencing. Orders accordingly.
Right of Appeal 14 days.
Dated, signedand deliveredatMombasa in open court/online by MS TEAMS, this 15th day of July 2021
HON. LADY JUSTICE A. ONG’INJO
JUDGE
In the presence of:-
Ogwel - Court Assistant
Respondent - Ms. Karanja hold brief for Mr. Chirchir
Appellant - No appearance
Hon. Lady Justice A. Ong’injo J
15/07/2021