[2020] KEHC 5847 (KLR)
The High Court found that the trial court erred by failing to consider the special circumstances surrounding the offence, namely the consensual relationship between the convict and the complainant, their cohabitation as husband and wife, and the existence of two children born from their union. The court held that...
Source-derived case information.
- Citation
- [2020] KEHC 5847 (KLR)
- Parties
- Applicant: Peter Githinji Maganju; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 96 of 2020
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- sentence revised; applicant released
- Legal Topics
- Defilement, Sentencing Discretion, Sexual Offences Act, Child Welfare
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Githinji Maganju
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the trial court erred in failing to consider special circumstances in sentencing for defilement of a child.
- 2 Whether continued imprisonment of the convict serves the best interests of the children born from the relationship.
Ratio Decidendi
The High Court found that the trial court erred by failing to consider the special circumstances surrounding the offence, namely the consensual relationship between the convict and the complainant, their cohabitation as husband and wife, and the existence of two children born from their union. The court held that the continued imprisonment of the convict would not serve the best interests of the children or their mother, as the welfare of the children required the father's participation in their upbringing. Consequently, the High Court set aside the fifteen-year sentence and substituted it with a sentence equivalent to the period already served, ordering the immediate release of the...
Court Disposition
sentence revised; applicant released
Orders
- The sentence of fifteen (15) years imprisonment is set aside and substituted with a sentence equivalent to the time already served.
- The applicant, Peter Githinji Maganju, shall be set at liberty forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
CRIMINAL REVISION NO.96 OF 2020
PETER GITHINJI MAGANJU...........................................APPLICANT
VERSUS
REPUBLIC.......................................................................RESPONDENT
(Revision of the Original Sentence dated 29. 09. 2018in Nanyuki
Sexual Offence Case No.32 of 2016– L. Mutai, CM)
21. 05. 2020
Before Justice H P G Waweru
In Chambers
ORDER ON REVISION
Upon request for revision by letter dated 06. 05. 2020 (and filed in court on 13. 05. 2020) by the Convict’s Advocates -
1. I have examined the record of the trial court.
2. The Convict was convicted after trial of Defilement of a Child contrary to Section 8(1) & (4) of the Sexual Offences Act, No.3 of 2006.
3. On 29. 09. 2018 the Convict was sentenced to serve fifteen (15) years imprisonment.
4. The conviction was based upon good and sound evidence, and the offence charged was proved beyond reasonable doubt. It matter not that at the time of commission of the offence the “Complainant” was 16 years old. She was still a child under the law. It also mattered not that it was her who requested for sexual intercourse from the Convict.
5. As for the sentence, this case presented very unique circumstances. The Convict, who was then aged about 21 years, was in a love relationship with the “Complainant”. I used the term “Complainant” in quotes because it was not the girl who complained of being defiled but her father.
6. The Convict was arrested and charged after the girl became pregnant. The child was born in the course of the trial. By then the couple were already living together as husband and wife at the home of the Convict’s parents. The child is called PM.
7. When the Convict was sentenced the couple was already expecting their second child, who was born thereafter. This second child is called VM.
8. This court has been further informed that the two children and their mother are being taken care of by the Convict’s father, who has to take care also of the Convict’s mother and siblings.
9. During the trial the girl’s love for the Convict was obvious. She even denied that he defiled her.
10. The girl’s second pregnancy was not brought to the attention of the trial court. The first child’s existence, however, was part of the evidence placed before the trial court.
11. In sentencing the Convict, the trail court was duty bound to take into account the glaring special circumstances that existed in this case –
i) The love relationship between the Convict and the girl.
ii) The fact that at the time of conviction the girl was already an adult, and that they were living as husband and wife.
iii) The fact that there was now another life in the mix – the child born to them, who would benefit immensely from the continued relationship of marriage between his parents.
12. The trial court did not consider any of these special circumstances. It focused only on punishing the Convict, not realizing that in meting out the sentence it did, both the child born of the relationship, and the girl herself, would suffer immensely by the imprisonment of the Convict.
13. And now this court has been informed that there is a second child born of the relationship between the Convict and the girl!
14. It is in the interest of the welfare of these two children that their father participates in bringing them up. They are not responsible for the illicit sex between their underage mother and the Convict as a result of which they were born!
15. The continued imprisonment of the Convict cannot be in the best interest of the welfare of these two children, nor indeed of their mother.
16. For the reason given above, I will set aside the sentence of fifteen (15) years imprisonment meted out to the Convict, and substitute therefor a sentence equivalent to the time that the Convict has already served.
17. That means that the Convict, PETER GITHINJI, shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.
DATED AT NANYUKI THIS 21ST DAY OF MAY, 2020
H.P.G. WAWERU
JUDGE.
DEPUTY REGISTRAR
NANYUKI HIGH COURT