REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU CRIMINAL APPEAL NUMBER 41 OF 2017 MICHAEL KAIRU WANJAMA.....................APPELLANT -VERSUSREPUBLIC....................................................RESPONDENT (Being an Appeal against both the conviction and the sentence of Principal Magistrate Hon. V. WAKUMILE delivered on the 5th May 2017 in Nakuru CM Criminal Case No. 2213 of 2012 in Republic v Michael Kairu Wanjama) JUDGMENT 1. The Appellant was charged with the offence of defilement of a girl contrary to Section 8(1) as read with subsection 4 of the Sexual Offences Act No. 3 of 2006. 2. Particulars to Count one are that, on the the 18 th day of March 2016 at [particulars withheld] Village in Njoro District Sub County within Nakuru County, the Appellant intentionally and unlawfully caused his male genital organ to penetrate the vagina of PNG a child aged 12 years which caused penetration. 3. The appellant was also charged with an alternative count of committing indecent act contrary to section 11 (1) of the sexual offences Act No.3 of 2006. Particulars are that on the the 18 th day of March 2016 at [particulars withheld] Village in Njoro District Sub County within Nakuru County, the Appellant intentionally and unlawfully committed an indecent act with a child namely P N G by touching her private parts namely vagina. 4. The appellant pleaded not guilty to both the main and alternative charge. Prosecution availed seven witnesses in the trial. On being placed on his defence, the appellant gave unsworn statement. He denied having committed the offence and said he was implicated by the complainant’s father who had employed him as a casual and alleged that he stole 20 chicken. He said the child’s father promised to teach him a lesson after elders vindicated him. 5. He was convicted of the main charge and sentenced to serve 20 years imprisonment. 6. Being aggrieved by decision of the trial magistrate, the appellant filed this appeal but at the hearing of the appeal, he withdrew appeal on conviction and applied for the sentence imposed be reduced. 7. The state was not opposed to withdrawal of appeal on conviction. In respect to reduction of sentence, Ms Nyakira for the state submitted that the appellant was convicted under section 8(3) of the sexual offences Act for defilement of a girl aged 12 years and under that provision, the minimum sentence is 20 years. She submitted that there is no law for reduction of sentence. 8. I have considered submission by the state counsel. I have perused the proceedings and considered circumstances under which the offence was committed. I have also considered the age of the girl defiled. The girl was 12 years old at the time she was defiled by the appellant. The appellant in his mitigation said he was 20 years old. I agree with the reasoning of the Supreme Court in the case of Francis Karioko Muruatetu & another v Republic [2017] eKLR that the imposing minimum sentence is taking away jurisdiction of the court in exercising discretion; I do agree that mitigating factors would be rendered superfluous if discretion is taken away. 9. However, the intention of enactment of every legislation should not be lost. I believe the intention of imposing minimum sentence was to bring about uniformity in sentence and two to deter others from committing. Whether so far minimum sentence have deterred offences under Sexual Offences Act is debatable.
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10. I am however of the view that circumstances of each case and the age of the victim and appellant should inform whether court should exercise discretion to impose a sentence lower or higher than the minimum provided by statute. 11. Having said the above, I have considered age of the minor herein and age of the appellant. My view is that the appellant took advantage of a defenceless child aged 12 years and unlawfully and intentionally had carnal knowledge of her. 12. My finding is that the appellant does not deserve reduction of sentence; I see no merit in appeal against sentence. 13. FINAL ORDERS 1. Appeal on sentence is dismissed. Judgment dated, signed and delivered at Nakuru this 4th day of December, 2019. ..................................... RACHEL NGETICH JUDGE IN THE PRESENCE OF:Court Assistants – Schola and Jeniffer Appellant in person Nyakira for state
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