Ali Mohammed Jimmy v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI HIGH COURT CRIMINAL APPEAL NO. 88 OF 2009 ALI MOHAMMED JIMMY ………………………...........………..APPELLANT VERSUS REPUBLIC ……………………………………………………RESPONDENT JUDGMENT Ali Mohamed Jimmy, the Appellant before the court was convicted on his own plea of guilty by a Senior Resident Magistrate court at Makadara on the 4th February 2009, for the offence of attempted defilement contrary to Section 9(1) as read with (2) of the Sexual Offences Act No. 3 of 2006. He was sentenced to serve ten years imprisonment. Being aggrieved by the sentence meted out by the trial magistrate for reasons that it was harsh and excessive the Appellant lodged an appeal on 9th March 2009. His appeal is predicted on five grounds of appeal namely that: 1. He is a first offender; 2. He is a youth depended upon by the nation for development and leadership; 3. He committed the offence while under the influence of alcohol and out of his common senses; 4. He has learnt from his mistake; 5. He was enrolled in a youth group in his constituency set to benefit from government initiated youth enterprise fund. The sixth ground was actually a summary of his prayers that the sentence be reduced and in the alternative a non custodial sentence be imposed. The State through Mrs. Mwanza opposed the application on the grounds that the Appellant was charged and convicted under Section 9(1) as read with (2) of the Sexual Offences Act No. 3 of 2006 and that the sentence meted out to him was the minimum mandatory sentence provided for upon conviction under the said Section. Section 9(1) of the said Act reads; “A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.” Sub Section (2) provides:

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