[2011] KEHC 360 (KLR)
The court found that the sentence imposed was within the statutory maximum for the offence of defilement of an imbecile under Section 146 of the Penal Code. The appellant's mitigation, including his willingness to care for the child and his ill health, had already been considered by the trial court. The gravity of...
Source-derived case information.
- Citation
- [2011] KEHC 360 (KLR)
- Parties
- Appellant: Samson Muiruri Mbugua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 185 of 2010
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; sentence upheld
- Legal Topics
- Defilement of Imbecile, Sentencing Principles, Mitigation, Sexual Offences, Appeals Against Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samson Muiruri Mbugua
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 14 years imprisonment for defilement of an imbecile was excessive and should be reduced on humanitarian grounds.
- 2 Whether there were sufficient grounds to interfere with the sentence imposed by the trial court.
Ratio Decidendi
The court found that the sentence imposed was within the statutory maximum for the offence of defilement of an imbecile under Section 146 of the Penal Code. The appellant's mitigation, including his willingness to care for the child and his ill health, had already been considered by the trial court. The gravity of the offence, involving a minor who was also an imbecile, outweighed the appellant's personal circumstances. There were no sufficient grounds to interfere with the sentence, and the appellant was not deserving of probation. The appeal was therefore dismissed and the sentence upheld.
Court Disposition
appeal dismissed; sentence upheld
Orders
- The appeal is dismissed.
- The sentence of 14 years imprisonment is upheld.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLICOF KENYA
CRIMINAL APPEAL NO 185 OF 2010
SAMSON MUIRURI MBUGUA......................................................................................APPELLANT
VERSUS
REPUBLIC....................................................................................................................RESPONDENT
J U D G E M E N T
Samson Muiruri Mbugua , the appellant herein, was charged with the offence of defilementof an imbecile, contrary to section 146 of the Penal Code as read with section 48(3) of the first schedule to the Sexual Offences Act , No 3 of 2006. It is alleged that on 24/2/2005 at K[...] village in Naivasha District, he had carnal knowledge of T.W.N., a girl who to his knowledge , was an imbecile. In the alternative, he was charged with indecent assault on a female, contrary to section 144(1) of the Penal Code as read with section 48(3) of the Sexual Offence Act, no 3 of 2006. He also faced a 2nd charge of failure to attend court contrary to section 23(1) of the police Act. That on 27/4/05, at Naivasha court failed to attend court CMC2500/05.
The prosecution called a total of 8 witnesses in support of thecase and the appellant gave an unsworn statement in his defence . He called no witness. The appellant was convicted of the offence of defilement and sentenced to 14 years imprisonment and on the second charge, he was fined Ksh500 in default one month imprisonment . Sentences were ordered to run concurrently .
Being aggrieved by that sentence, the appellant preferred thisappeal in which he contends that the sentence of 14 years is excessive. He prays that the same be reduced on humanitarian grounds. He filed submissions in which he claims to have learnt a lesson and has changed his life and prays to be released so that he can go and look after his child who was born as a result of his action. He also claims to be unwell and should be considered for probation.
The appealwas opposed. Mr Omwega appearing for th state urged the court to dismiss the appeal because sentence is not illegal .
A childwas born out of the act of defilement which the appellant now admits. Section 146 of the Penal code under which the appellant was convicted imposes a maximum sentence of 14 years. In his Mitigation in the trial court, the appellant gave the same reasons he now advances as grounds that he was going to take care of the child who was born out of the heinous act . Apart from the complainant being an imbecile, she was also a minor aged 14 years of age. The appellant is not deserving to serve a probation sentence and there are no sufficient grounds adduced by the appellant to merit the court interfere with the sentence. The sentence is upheld and the appeal is hereby dismissed.
DATED AND DELIVERED THIS 17TH DAY OF JUNE 2011.
R P V WENDOH
JUDGE
PRESENT
Appellant present in person
Mr Omutelema for state
CC: Kennedy Oguma