REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITUI HIGH COURT CRIMINAL APPEAL CASE NO. 14 OF 2020 JAMES MULATYA KIMANZI....................APPELLANT VERSUS REPUBLIC................................................RESPONDENT (Being an Appeal from the Original Conviction and Sentence in Criminal Case (Sexual Offence No. 14 of 2020 of the SPM Court at Mwingi) JUDGEMENT 1. James Mulatya Kimanzi, the appellant herein, was charged vide Mwingi SRM’s court Criminal S/O Case No. 14 of 2020 with the offence of defilement contrary Section 8(1) of the Sexual Offence Act No. 3 of 2006. The particulars as per the charge sheet presented to that court are that, on diverse dates between 2019 and April 2020 at (particulars withheld) sub-location in Mwingi within Kitui County he defiled (name withheld) a child aged 15 years. 2. The proceeding from the trial court reveals that the appellant was produced in court on 20 th April 2020 where he pleaded guilty to the offence and the trial proceeded to convict him on his own plea of guilty and sentenced him to serve 20 years’ imprisonment which is the statutory minimum sentence prescribed by the statute. 3. The appellant was aggrieved and preferred this appeal and raised the following ground namely: (i) That the trial magistrate erred in law and facts by convicting the appellant on hearsay evidence which lacked no corroboration. (ii) That the learned trial magistrate erred in both law and facts when he convicted the appellant in this case with inconsistent and contradictory evidence. (iii) That the learned trial magistrate erred in law and facts relying on defective charges that could not hold any conviction. (iv) That the evidence tendered was a family evidence which was a result of grudge between the appellant and the complainant’s mother. 4. At the hearing of this appeal, the appellant abandoned his appeal on conviction and pleaded for review on sentence. This appeal is therefore, on sentence only. Furthermore, under the provisions of Section 348 of Criminal Procedure Code of the penal code clearly provides that no appeal shall lie on plea of guilty except on the extent or legality of the sentence meted out. 5. In this matter the appellant put up a spirited plea asking for leniency. He pleaded remorsefulness and blamed the victim’s father for his predicament. According to him, he had assisted the victim’s father with Kshs. 15,000 to help seek for treatment for a medical condition and that the victim’s father gave him any of his 5 daughters to choose from as a wife as a form of compliment for the assistance extended to him. He told this court that as fate would have it, he chose the youngest daughter who unfortunately was under age and that when he took her home, his mother scolded him for taking home a school going child and returned the girl to her parents. However, the damage had been done because by the time the girl was returned, the appellant had defiled her and, in the process, impregnated her. 6. The appellant admits that he made a mistake though he pleads at the time he was unaware it was a crime to sleep with an underage girl. He pleads for leniency on those grounds. 7. The Respondent through Mrs. Kabaale from the Office of the Director of Public Prosecution has vehemently opposed this appeal. The Respondent contends that the sentence meted out was appropriate and not harsh. She pointed out that the age gap between the appellant and
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the victim was big stating that while the appellant was 31 years old, the victim was 15 years and a school going child. It was further argued that due to pregnancy, the child dropped out of school and that she was exposed to early marriage by the appellant whose sole intention was to satisfy his sexual desires. 8. The state further points out that the girl’s right to education was adversely affected and urged this court to uphold the sentence in order to pass a clear message to the public as a deterrence measure. 9. This court has considered this appeal and the response made. The appellant was, as observed above, charged with the offence of defilement Contrary to Section 8(1) as read with Section 8(3) of Sexual Offence Act. The cited statute states: - ‘‘1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.’’ 10. The sanction provided by the statute for defilement is a minimum of 20 years. The trial court’s hands were tied as the discretion to mete out a lesser sentence is taken away by the provision of a minimum sentence. The Supreme court in the case of Francis Muruatetu has now clarified that the decision made in regard to sentence prescribed by Section 204 of the Penal Code did not apply to other instances such as in sexual offences. 11. This court also finds that the plea taken at the trial court was quite unequivocal and the appellant has not stated that he did not understand the nature of the offence read over to him or the language used. He only expressed shock that what he did was a serious offence which this court finds common given the remoteness place the offence was committed. I am however, not persuaded by such plea because ignorance of law is never a defence and besides that, I agree with the Director of Public Prosecution that it is time to pass a message in this region and indeed the entire country that defilement is such a grave offence owing to the adverse and negative impact it has on the victims. To protect the children and their rights, a deterrent sentence is imperative and that is what informed parliament in the enactment of Sexual Offence Act. 12. In the premises, this court finds that the sentence meted out against the appellant was legal. It may appear harsh but that is exactly what the legislation intended because Section 8 (3) of the said Statute clearly prescribes for a minimum sentence of 20 years for defilement of a minor between the ages of 12 years to 15 years. The complainant’s age was established to be 15 years vide a birth certificate tendered as P Ex 1. For the above reasons, this court finds no merit in this appeal. The same is disallowed. The appellant appears remorseful but the seriousness of the sort of the offence that he committed ties the hands of this court remorsefulness notwithstanding. The conviction and sentence are upheld. The appellant will get sufficient time to reform and transform and possibly educate other would-be offenders to be careful when choosing partners in marriage and stay away from children. DATED, SIGNED AND DELIVERED AT KITUI THIS 8TH DAY OF FEBRUARY, 2022. HON. JUSTICE R. K. LIMO JUDGE
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