REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT CHUKA CRIMINAL REVISION NO. 3 OF 2020 (From original conviction and sentence in Criminal Case No. SOA 18 of 2019 of the HON. NJOKI KAHARA (SRM at the Chief Magistrate's Court at Chuka delivered on 30/1/2020) REPUBLIC............................................................................ODPP VERSUS PATRICK KINYUA JOHN..................................RESPONDENT RULING 1. PATRICK KINYUA JOHN, the Respondent herein was charged with the offence of defilement contrary to Section 8(1) (4) of the Sexual Offences Act No. 3 of 2006 vide Chuka CMCC SOA NO. 18/2019. The particulars as per the charge presented to that court indicates that on diverse dates between December 2018 and 28 th May 2019 at [particulars withheld] village Magutuni within Tharaka Nithi County he defiled (name withheld) a child aged 17 years old. 2. The Respondent also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of Sexual Offences Act but since he was convicted and sentenced in the main charge this court will delve on the main charge of defilement. 3. The Respondent did deny the charge but after trial, he was found guilty, convicted and sentenced to 4 years probation. In passing the sentence the trial court took into consideration the principle in Muruatetu's case and the fact that the Respondent and the complainant were lovers and had gotten a child out of their union. 4. The Office of Director of Public Prosecution was dissatisfied with the sentence meted out and has challenged its legality vide this revision. 5. The grounds upon which the State/Applicant has applied for revision are as follows: i) That the sentence is illegal and too lenient as compared with the offence committed. ii) The Sexual Offences Act does not provide for a non-custodial sentence. iii) That a probation order of 4 years is illegal as the Probation of Offenders Act provides for probation for period of not more than 4 years. 6. This court has called for the lower court file and I have perused through it.The Respondent was charged and convicted of the offence of defilement contrary to Section 8(1) (4) which provides that a person who commits an offence of defilement with a child between the age of 16 and 18 years is liable upon conviction to imprisonment for a term of not less than 15 years. The Respondent herein was found guilty of the offence charged and convicted accordingly. However I find that the judgment is somehow contradictory because while it found that the Respondent's defence under Section 8(5) of Sexual Offences Act was well taken, it still found that the offence had been committed. If the trial court was convinced that the defence raised had been established, then she should have acquitted him rather than return a verdict of guilty. 7. I am also persuaded by the contention by the Applicant that handing out a non-custodial sentence after conviction in a case of sexual offence was improper given that the minimum sentence prescribed by law is 15 years imprisonment. This court finds that notwithstanding the principle in Muruatetu's case, handing out a non-custodial sentence was too lenient in the circumstances. Sexual Offences Act doesn't provide for non custodial sentence. 8. Furthermore it is now well settled following the Supreme Court's decision in Francis Karioko Muruatetu -vs- Republic [2017] eKLR the mandatory nature of minimum sentences prescribed by Sexual Offences Act is unconstitutional. However it should not be lost that sexual
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offences in view of the position taken by Legislature in passing the said statute was that Kenyans viewed sexual offences to be serious to warrant stiff penalties in order to protect the young and vulnerable. There has to be good reason to depart from the prescribed sentence. In the case of Dismas Wafula Kilwake -vs- Republic [2018] eKLR the Court of Appeal made the following observations:- “[We] hold that the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing. The Sentencing Policy Guidelines require the court, in sentencing an offender to a non-custodial sentence to take into account both aggravating and mitigating factors. The aggravating factors include use of a weapon to frighten or injure the victim, use of violence, the number of victims involved in the offence, the physical and psychological effect of the offence on the victim, whether the offence was committed by an individual or a gang, and the previous convictions of the offender. Among the mitigating factors are provocation, offer of restitution, the age of the offender, the level of harm or damage inflicted, the role played by the offender in the commission of the offence and whether the offender is remorseful." 9. In this instance, the Respondent is 25 years old and obviously took advantage of a 17 year old school going girl and perhaps put to rest all her ambition for further studies and career. The effect of the offence on the minor are long lasting and the psychological effect is even worse. I find that the 4 year probation sentence was improper. The provisions of Section 5 of Probation of Offenders Act also limits the period of probation to not more than 3 years. The trial court's sentence of 4 years probation was illegal. It is not sustainable. In the end this court finds basis to revise the sentence imposed by the trial court on 30 th January 2020 by setting it aside. In its place taking mitigating factors into consideration, and to give chance to the victim to go back to school and try and get back her dreams in education and career, the Respondent is hereby sentenced to serve 5 years imprisonment. He has 14 days Right of Appeal. Dated, signed and delivered at Chuka this 4th day of March 2020. R. K. LIMO JUDGE 4/3/2020 Ruling signed, dated and delivered in the open court in presence of Momanyi for Applicant and Respondent in person. R.K. LIMO JUDGE 4/3/2020
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