G M v Republic

siblings namely: O, K and R. Their mother had been chased by the appellant. The appellant had gone to sell Miraa and came back at night. The appellant used to have his other room while they slept in another room. The appellant went to their room, removed her clothes, and defiled her. She saw that it was her father and started crying. It was not the first time as he had done it before at home. After he finished he went to his bed and slept. The following morning she informed her mother who had already been informed by one of her siblings about the incident. She was taken to Meru Hospital and was examined. Her brother K asked her that night why she was crying and she informed him that their father had defiled her. PW2 PC JANET AYABEI was stationed at the Meru Police Station. On 17th November, 2008 the case was reported at the station by the complainant’s mother. She referred PW1 to hospital and a P3 form was filled on 21.11.2008. She investigated the case and had the appellant arrested and charged with the offence. PW3 DR. ISAAC MACHARIA was based at the Meru General Hospital. He examined PW1 on 20.11.2008 and filled a P3 form. He concluded that there was evidence of penetration. In his unsworn defence, the appellant denied committing the offence. He testified that he had constant wrangles with his wife. His wife decided to do business at the local market and he was against that. They disagreed and she went away with the children. He sells miraa and did not commit the offence. DW2 SAMSON MWORIA is the Area Assistant Chief. He testified that at one time he was called by the appellant to witness his wife loading her property on an ox-cart. The appellant’s wife loaded their property and left. DW3- LAWRENCE MUGA RINTARI testified that on an unknown date he was called by DW2 to witness the appellant’s wife loading her property on an ox-cart. The appellant and his wife used to differ and whenever she left she went with their children. DW4 –M’N M’M is the appellant’s father. He told the court that the appellant’s wife used to sell potatoes in Meru Town. The appellant told his wife not to return home at night. The two had four small children. At one time she loaded her things on an ox-cart and left. She left with the complainant and left the other three children. DW5 S N is the appellant’s mother. She also informed the court that the appellant used to tell his wife not to go home late from the market. The appellant took her property and left with her children. Mr. Mwanzia submitted that the appeal is on sentence. The evidence of PW1 does confirm that indeed she was defiled by her father. Her evidence is supported by that of PW3 who examined PW1 and concluded that there was penetration. The conviction was therefore proper. The next issue is on sentence. The appellant was charged under S.20 (1) of the Sexual Offences Act. The Section states as follows:(1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years: Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person. It is submitted that the above Section does not make a life imprisonment as the mandatory sentence. The above Section provides two forms of sentences. The first sentence is imprisonment for a term of not less than 10years. This happens when the victim of incest is above 18years old. Where the victim is below 18 years old the accused is liable to imprisonment for life. The term liable is the operating word in the proviso to S.20(1). In the case of M. K- VS – REPUBLIC (NBI) CRIMINAL APPEAL NO.248 OF 2014(C.A)(2015) Eklr, the Court of Appeal had the opportunity to interpret S.20(1). The court stated as follows:17. In the instant case, the appellant was charged with an offence under Section 20(1) of the Sexual Offences Act. This Section provides for a minimum term of 10 years imprisonment.

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However, the proviso to Section 20(1) stipulates that if the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life. The learned Judge of the High Court interpreted this proviso to mean that a mandatory minimum sentence for life is provided for in the proviso if the female victim is under the age of eighteen years. The legal question for our consideration and determination is whether this interpretation is correct; does the proviso provide for a minimum term of life imprisonment”. 18. The first observation to note is that the phrase “not less than” has not been used in the proviso to Section 20(1) of the Sexual Offences Act. The inference is that the proviso does not create a minimum sentence. The phraseology and wording in the proviso is that the accused shall be liable to imprisonment for life. 19. What does “shall be liable” mean in law”. The court of Appeal for East Africa in the case of OPOYA – V – UGANDA(1967) EA 752 had an opportunity to clarify and explain the words “shall be liable on conviction to suffer death”. The court held that in construction of penal laws, the words “shall be liable on conviction to suffer death” provide a maximum sentence only; and the courts have discretion to impose sentences of death or imprisonment. The term liable does not mean that the life imprisonment sentence is mandatory. It means that the accused can be sentenced to a period of between the minimum of 10 years upto life imprisonment. The trial court therefore could have sentenced the appellant to a period of imprisonment and not life imprisonment. However, the life imprisonment sentence imposed by the trial court is not unlawful. It is not clear as to why the Legislature opted to differentiate punishment for defilement of a girl under the age of 11 years and incest of a girl of the same age. Under S.8(1) (2) of the Sexual Offences Act, anyone convicted of defiling a child aged 11years or less shall upon conviction be sentenced to imprisonment for life. The word liable is not used in that Section. Section.20(1) provides that if the victim is below 18years old he shall be liable to be sentenced to a period of imprisonment which can be extended to life imprisonment. There is the fact that the victim of incest could fall within the age bracket of 12years and 17years. This is covered differently in Section 8 of the same Act. An offence of incest involves a family member and perhaps the legislature was of the view that the same family member who is convicted might be required to cater for the children. I do agree with the submissions by Mr. Mwanzia that life imprisonment under Section 20(1) of the Sexual Offences Act is not the minimum sentence. However, the court can enhance the sentence to life imprisonment. The court can refer to Section 8 of the same Act and impose punishment depending on the age of the victim. This is not mandatory. In this case the victim was 9years old and the court imposed life imprisonment. The minimum sentence for incest is 10years imprisonment. The victim in this case was 9years old approaching 10years. She was a minor. The appellant took advantage of the fact that his wife was not present and kept on defiling PW1. The appellant left young children but his actions cannot go unpunished. It is true that he has been in prison since 2008 and has served 9years in jail. There is no information from the prison or the appellant that he has undergone some form of training. Given the circumstances of the case, I do find that life imprisonment is not ideal in the circumstances. I do set aside the life imprisonment sentence and replace it with 15years imprisonment from the date of conviction. The appeal on conviction lacks merit and is dismissed. The sentence of life imprisonment is set aside and replaced with 15years imprisonment. DATED AT EMBU THIS …….…DAY OF SEPTEMBER, 2017. S. J. CHITEMBWE JUDGE DATED, SIGNED AND DELIVERED AT MERU THIS 5TH DAY OF OCTOBER 2017. A.MABEYA

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JUDGE IN PRESENCE OF: …………………….... for Appellant ……………………….for Respondent. ……………………….Court Assistant

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