[2019] KEHC 2259 (KLR)
The court found that the appellant, despite his mitigation and health status, was not remorseful and continued to maintain his innocence. The offence of defilement is prevalent and has severe psychological and physical effects on the victim, as evidenced by the probation report. The law prescribes a mandatory...
Source-derived case information.
- Citation
- [2019] KEHC 2259 (KLR)
- Parties
- Appellant: MOO; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 22 of 2018
- Procedural Posture
- Criminal Appeal / Resentencing After Conviction and Sentence Upheld
- Outcome
- Appeal against sentence dismissed; original sentence upheld.
- Judges
- RE Aburili
- Legal Topics
- Defilement of a Child, Sentencing Principles, Mitigation of Sentence, Mandatory Minimum Sentences
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
MOO
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Resentencing After Conviction and Sentence Upheld
Legal Issues
- 1 Whether the sentence of 20 years imprisonment for defilement of a child aged 13 years should be reduced upon resentencing.
- 2 Whether the appellant's mitigation and health status warrant a reduction of sentence.
Ratio Decidendi
The court found that the appellant, despite his mitigation and health status, was not remorseful and continued to maintain his innocence. The offence of defilement is prevalent and has severe psychological and physical effects on the victim, as evidenced by the probation report. The law prescribes a mandatory minimum sentence for such offences, and the sentence imposed by the trial court was both lawful and appropriate. The appellant's circumstances did not warrant a reduction of sentence, and the interests of justice and child protection outweighed the appellant's plea for leniency. The appeal against sentence was therefore dismissed, and the original sentence of 20 years imprisonment...
Court Disposition
Appeal against sentence dismissed; original sentence upheld.
Orders
- The sentence of 20 years imprisonment imposed on the appellant is upheld.
- The appellant may benefit from remission at the discretion of prison authorities, subject to good conduct.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL APPEAL NO. 22 OF 2018 [SOA]
MOO..........................APPELLANT
VERSUS
REPUBLIC............RESPONDENT
(Being an Appeal from the conviction and sentence in a judgment dated 29. 3.2018 delivered at Bondo Law Courts vide Criminal Case S.O. No. 38 of 2017 before Hon. M. Obiero – P.M.)
RESENTENCING
1. On 17. 8.2019 this Court delivered a judgment upholding the conviction of the Appellant by the trial Court for offence of defilement of a child aged 13 years. The Appellant was sentenced to serve 20 years imprisonment. before making a determination on the sentence, I gave the Appellant an opportunity to mitigate which he has done and stated that he has a family of a wife and 3 children who depend on him, that he is sickly, with TB, diabetes, asthma and is on medication. I have seen his Hospital discharge sheet dated 5. 1.2019 on his health status.
2. I have also considered a social inquiry report filed by the Siaya County Probation Officer on 30. 10. 2019. The report reveals that the family of the victim was visited and only her mother could be traced. The child is not found but has sat her KCPE examination. She is scared at the mention of the name of the Appellant because of the trauma that she has undergone. She is psychologically affected by the defilement.
3. The Probation report is against reduction of the sentence imposed as the act affected the child’s academics and health. she complains of stomach ache all the time and cries whenever the Appellant’s name is mentioned.
4. The Appellant is a 38 year old man. He is HIV positive and on ARVs. He is married with 3 children. He knew and ought to have known that a child aged 13 years cannot be a sex object for him to satiate his thirst.
5. The offence is prevalent and traumatizing to the victim of the offence. The Appellant would not wish such an act to be done to his own children. Children expect adults to protect them. Children are vulnerable and so the law was enacted to protect them from pedophiles and sex pests. The Appellant knew that if he had sexual encounter with a child, he would most likely infect her with HIV/AIDs because of his own status. He did not care. He now asks for leniency from the Court. The Court has heard his cry but he is not remorseful meaning he maintains that he is innocent. He does not think that his conviction was sound. That being the case, I find no reason to interfere with the sentence imposed by the trial Court which was mandatory minimum but which is lawful and appropriate in the circumstances as the Appellant has had an opportunity to mitigate.
6. Accordingly, I uphold the 20 years imprisonment imposed on the Appellant. I dismiss the appeal against sentence. The appellant may benefit from remission which is in the discretion of the prison authorities, subject to his exhibiting good character, discipline and industry while in prison.
7. Orders accordingly.
Dated, Signed and Delivered at Siaya This 11th Day of November 2019
R.E. ABURILI
JUDGE
In the presence of:
The appellant in person
Mr. Okachi Snr Principal Prosecution Counsel for the Sate
CA: Brenda and Modestar