REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITUI CRIMINAL APPEAL NO. 175 OF 2012 BONIFACE MUTUA WAMBUA.....……………..…………. APPELLANT VERSUS REPUBLIC …………………………………….…………… RESPONDENT (Being an appeal from the original conviction and sentence in Kitui Principal Magistrate’s Court Criminal Case (S.O.) No. 21 of 2011 by Hon. B. M. Kimemia, P M on 31/10/12) JUDGMENT 1. Boniface Mutua Wambua, hereinafter “the appellant” was charged with the offence of Defilement contrary to Section 8(1)(4) of the Sexual Offences Act No. 3 of 2006. Particulars of the offence were that on diverse dates between 1st day of January, 2011 and 14th day of May, 2011 at unknown time in Kitui County intentionally and unlawfully caused his penis to penetrate into the vagina of MK a girl aged 17 years. On the alternative charge he was charged with the offence of Committing an Indecent Act With A Child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars thereto were that on diverse dates between 1st day of January, 2011 and 14th day of May, 2011 at unknown time in Kitui County, committed an act of indecency with MK a child aged 17 years by touching her private parts namely vagina and breasts with his hands. 2. He was tried, convicted and sentenced to 20 years imprisonment on the main count. 3. Being aggrieved by the sentence thereof he now mitigates on grounds that the sentence was severe; He was a first offender; He is an orphan and all his siblings depend on him for basic requirements. 4. At the hearing of the appeal the Appellant sought reduction of the sentence imposed. 5. In response thereto the state through Learned State Counsel Ms. Amajong opposed the appeal. She argued that the minimum sentence for the offence is fifteen (15) years imprisonment therefore the sentence imposed was legal. Further that as a result of the act committed the Complainant has been rendered a young mother. 6. This being the first appeal my duty is to reconsider the decision of the Lower Court and come up will my own conclusion. 7. In the case of Kyalo vs. Republic (2009) KLR 325. The Court of Appeal identified relevant factors for consideration in sentencing as facts that mitigate for a more lenient sentence like an Appellant being a first offender. 8. The minimum sentence provided for the offence of Defilement contrary to Section (1) as read with Section (4) of the Sexual Offences Act is fifteen (15) years imprisonment. Looking at the circumstances that culminated into the Appellants arrest and subsequent trial indicate that the Complainant was 17 years old. She engaged in coitus with the Appellant on two (2) different occasions. The third time they were doing it her mother found them and reported the matter to the authority. She was examined and found to be five (5) months pregnant.
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9. The Appellant was a herdsboy and a first offender. In his mitigation he expressed his ignorance of what transpired and pleaded for leniency. These were circumstances that the Trial Magistrate should have taken into consideration. In the premises it is necessary to interfere with the sentence imposed. Consequently I set aside the sentence meted out and substitute it with fifteen (15) years imprisonment. 10. It is so ordered. Dated, Signed and Delivered at Kitui this 28th day of October, 2015 L. N. MUTENDE JUDGE
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