[2020] KEHC 862 (KLR)
The High Court found that, although the appellant was properly convicted and the minimum sentence of 20 years' imprisonment was imposed as per the Sexual Offences Act, the Supreme Court's decision in Muruatetu rendered mandatory sentences unconstitutional for removing judicial discretion. Considering the age of the...
Source-derived case information.
- Citation
- [2020] KEHC 862 (KLR)
- Parties
- Appellant: Simon Kabiru Nyambura; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 98 of 2017
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- appeal on conviction withdrawn; appeal on sentence allowed; sentence reduced to 10 years' imprisonment
- Judges
- RB Ngetich
- Legal Topics
- Defilement, Sentencing Principles, Sexual Offences Act, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Simon Kabiru Nyambura
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the sentence imposed on the appellant for the offence of defilement was excessive and warranted reduction.
- 2 Whether the court should exercise discretion to reduce the statutory minimum sentence in light of recent jurisprudence.
Ratio Decidendi
The High Court found that, although the appellant was properly convicted and the minimum sentence of 20 years' imprisonment was imposed as per the Sexual Offences Act, the Supreme Court's decision in Muruatetu rendered mandatory sentences unconstitutional for removing judicial discretion. Considering the age of the complainant (15 years) and the circumstances of the case, the court exercised its discretion to reduce the sentence to 10 years' imprisonment, finding this to be appropriate and just in the circumstances.
Court Disposition
appeal on conviction withdrawn; appeal on sentence allowed; sentence reduced to 10 years' imprisonment
Orders
- Appeal on conviction marked as withdrawn.
- Appeal on sentence allowed and sentence reduced to 10 years’ imprisonment from the date of sentence before the lower court 31st October 2017.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPEAL NO. 98 OF 2017
SIMON KABIRU NYAMBURA.........................................................................APPELLANT
VERSUS
REPUBLIC.........................................................................................................RESPONDENT
(An appeal on sentence from the judgment and/or decree of Honourable B. Mararo
Principal Magistrate in Nakuru A/CR. No. 242 of 2016 delivered on 31st October 2017)
JUDGMENT
1. The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006. The particulars being that on the 25th day of December 2016 within Nakuru County, intentionally and unlawfully committed an act by inserting his male genital organ namely penis into the genital organ namely vagina of MA a child aged 15 years.
2. The alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars being that on the 25th day of December 2016 within Nakuru County, intentionally and unlawfully committed an indecent act with MA a girl aged 15 years by touching her private parts namely vagina with his male genital organ namely penis.
3. The appellant denied the charges and the case proceeded for full trial. The prosecution called 5 witnesses in support of their case while the appellant in his defence gave sworn statement without calling any witness. By the judgment delivered on 31st October 2017, the lower Court found the appellant guilty of the main charge convicted and sentenced him to 20 years’ imprisonment.
4. The appellant being aggrieved and dissatisfied with the conviction and sentence, acting in person, he filed this appeal through a Petition of Appeal dated 13th of November 2017 and challenged the conviction and sentence on the following grounds: -
i. The learned trial magistrate erred both in law and in fact by failing to appreciate that the medical evidence produced before the trial court did not support the charges;
ii. The learned trial magistrate erred both in law and in facts by failing to consider that although it is an obligation of the prosecution to furnish the accused with statement and such other evidence they intend to use against the accused, it failed to do so despite his continued insistence;
iii. The learned trial magistrate erred in law and in fact by failing to consider that the alleged underlying circumstances during the commission of the offence were illogical and inconsistent with the truth;
iv. That the learned trial magistrate erred in law and in facts by failing to appreciate that the P3 form produced in evidence before the Court did not support the charge.
5. The state opposed the appeal both on conviction and sentence. On 5th November 2020 when the appeal came up for hearing, after oral submissions being made by the state counsel, the appellant decided to withdraw the appeal on conviction and prayed that the sentence be reduced.
ANALYSIS AND DETERMINATION
6. The appellant having withdrawn appeal on sentence will not make any comment on initial submissions on conviction and only determine whether the appellant deserve reduction of sentence. The appellant was sentenced to 20 years after he was found guilty of defiling the complainant. Record show that the complainant defiled was 15 years old. The Court imposed minimum sentence provided by statute.
7. I note that mandatory nature of death sentence was however declared unconstitutional by the Supreme Court in the case of Muruatetu for taking away Court’s discretion. It renders mitigating factors superfluous. The appellant opted not to mitigate in the lower Court and in the lower Court he prayed for the sentence to be reduced.
8. I have considered circumstances of this case; I also take note of the age of the complainant herein and find it appropriate to reduce the sentence to 10 years’ imprisonment.
9. FINAL ORDER
1. Appeal on conviction marked as withdrawn.
2. Appeal on sentence allowed and sentence reduced to 10 years’ imprisonment from the date of sentence before the lower court 31st October 2017.
Judgment dated, read and delivered at Nakuru via zoom This 9th December, 2020
RACHEL NGETICH
JUDGE
In the Presence of:
Court Assistant – Jeniffer
State Counsel – Rita
Accused in person