REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII CRIMINAL APPEAL NO. 17 OF 2018 KENNEDY OMBATI..........................APPELLANT VERSUS REPUBLIC.......................................RESPONDENT (Appeal from the original conviction and sentence of Hon. B. D.K Matutu– SRM dated 31st May 2017 at the Principal Magistrate’s Court at Kilgoris in Criminal Case No. 24 of 2017) JUDGMENT 1. The appellant KENNEDY OMBATI was convicted on his own plea of guilty for the offence of defilement contrary to section 8(1) and (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 15 th May 2017 at Kilgoris Township in Transmara West Sub-County within Narok County, he intentionally caused his penis to penetrate the vagina of S N, a girl aged 13 years. He was sentenced to serve 20 years imprisonment. 2. The appellant’s appeal is on the sentence only. The appellant states that that he is a young man of twenty years old and he is asking the court to reduce the sentence. He is remorseful and comes from a poor family and he is the sole breadwinner and he has changed since his imprisonment. He also states that he was novice and did not understand the nature of the charges. 3. The trial court read the charge to the accused in Kiswahili the language he stated he understands and his response was that “it is true”. The facts were read to him and he replied “the facts are true”. In my view he understood the charge and pleaded guilty to it. The complainant was 13 years. 4. Despite his plea for a reduction of the sentence, I find that my discretion is constrained because the sentence of 20 years imprisonment is the mandatory minimum sentence under section 8(3) of the Sexual Offences Act. It was lawfully imposed by the trial magistrate and there is no legal authority for this court to set it aside. The appeal is dismissed. The conviction and sentence is upheld. Dated and delivered at Kisii this 16thday of November 2018. R.E OUGO JUDGE Mr. Otieno for the State. Appellant in person. Rael Court Clerk
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