[2021] KEHC 9783 (KLR)
The court held that while the offence of defilement attracts a life sentence, judicial discretion allows for a lesser sentence where mitigation exists. The appellant was a first offender, pleaded guilty, and thus saved judicial time. However, the seriousness of the offence, the age of the victim, and the ongoing...
Source-derived case information.
- Citation
- [2021] KEHC 9783 (KLR)
- Parties
- Appellant: Sabastian Chola Mliwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E006 of 2020
- Procedural Posture
- Criminal Appeal / Sentence Review
- Outcome
- sentence_varied
- Judges
- JO Nyarangi
- Legal Topics
- Defilement, Sentencing Discretion, Mitigation, Sexual Offences, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sabastian Chola Mliwa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Sentence Review
Legal Issues
- 1 Whether the sentence of 30 years imprisonment for defilement should be revised in light of mitigation and circumstances of the offence.
- 2 Whether the court should exercise discretion to impose a lesser sentence than life imprisonment for a first offender who pleaded guilty.
Ratio Decidendi
The court held that while the offence of defilement attracts a life sentence, judicial discretion allows for a lesser sentence where mitigation exists. The appellant was a first offender, pleaded guilty, and thus saved judicial time. However, the seriousness of the offence, the age of the victim, and the ongoing trauma precluded a non-custodial sentence. Balancing these factors, the court found the original 30-year sentence excessive and substituted it with a 20-year imprisonment term, to be calculated from the original date of sentence.
Court Disposition
sentence_varied
Orders
- The sentence of 30 years imprisonment is substituted with a sentence of 20 years imprisonment, to be calculated from the date of the original sentence.
Full Case Text
Judgment text and source record
24 paragraphs
Mliwa v Republic (Criminal Appeal E006 of 2020) [2021] KEHC 9783 (KLR) (12 February 2021) (Ruling)
Neutral citation: [2021] KEHC 9783 (KLR)
Republic of Kenya
In the High Court at Voi
Criminal Appeal E006 of 2020
JN Onyiego, J
February 12, 2021
Between
Sabastian Chola Mliwa
Appellant
and
Republic
Respondent
Ruling
1. The Appellant herein was charged before Hon. E.Nyakundi Resident Magistrate Wundanyi Law Court of the offence of defilement contrary to section 8(1) as read with section 8(a) of the sexual offences act no 3/2006. Having entered a plea of guilty, he was on 19. 12. 19 sentenced to 30 years imprisonment. The court was however cognizant of the fact that the offence the Appellant was convicted of attracts a life imprisonment term. The trial court nevertheless indicated that it was persuaded to reduce the sentence because of the mitigation on record.
2. Aggrieved by the said conviction and sentence, the appellant lodged a petition of appeal seeking revision of the sentence. He stated that he was under the influence of alcohol when he committed the offence and that he was ready to reform.
3. When the matter came up for hearing, the court ordered for pre-sentencing social inquiry report. The victim impact report dated 8. 2.21 reveals that the local administration and the community at large are not comfortable with the court in reducing sentence or releasing the applicant on non-custodial sentence. That the victim’s family is still bitter and the villager’s memory is fresh and that they are not ready to forgive the applicant.
4. During the hearing, the Appellant pleaded for leniency. He abandoned his appeal against conviction. He claimed that he had reformed and that if released he will be a law abiding citizen.
5. On the other hand, the state vehemently opposed the application stating that the offence committed was serious deserving life imprisonment and that the victim is still traumatized.
6. I have considered the appeal/application seeking review of the sentence herein. It is true that the offence attracts a sentence of life imprisonment. However, courts can exercise discretion by giving a lesser sentence subject to mitigation on record.
7. After considering the seriousness of the offence and taking into account that the 9 years old (victim) boy who was sodomized is still traumatized and yet to recover, it will be unreasonable to even imagine a non-custodial sentence. However, taking into consideration the mitigation that the Appellant is a first offender and that he saved court’s precious time by pleading guilty, I am inclined to review the period of sentence from 30 years to 20 years.
8. Accordingly, the sentence of 30 years imprisonment is hereby substituted with a sentence of 20 years imprisonment to be calculated from the date of sentence
RIGHT OF APPEAL 14 DAYS.
DATED, SIGNED AND DELIVERED THIS 12TH DAY OF FEBRUARY 2021J.N. ONYIEGOJUDGEJ.ONYIEGO- J