Micrphy Khambu Alias Juma v Republic

She was living in Milalani village with her parents and other siblings. In the year 2021 she was in class five. The appellant who was known in the village as Jumaa was employed by a neighbour as a herdsboy. 6. In the year 2019 the appellant enticed her into a sexual relationship. They had sex in his house that year and had it thereafter several times. On 25/3/2021 she was unwell. The father (Pw-2) took her to Vishakani clinic where she was examined and found pregnant. She told the appellant that she was pregnant as he is the one who had impregnated her. He said he will take care of the child as she continues schooling. The father reported the matter at Kaloleni Police Station. The victim was questioned about the pregnancy and said it’s the appellant who had impregnated her. Pw-3 recorded her statement and that of her father and issued them with a P3 form. The P3 was filled at Mariakani Sub-County Hospital on 25/3/2021 by Pw-4. It was noted that she was 25 weeks pregnant and her probable date of delivered was 7/7/2021. Her hymen was absent. Out of the said pregnancy the clinical officer opined that there was defilement. When the appellant realized the matter had been reported, he went underground. The police traced him later at Kombe area and he was arrested. 7. On 4/4/2021 the victim gave birth to a baby girl, but prematurely. Unfortunately, the child passed on later on 21/4/2021. 8. Upon completion of investigations by Pw-3 the offences in the charge sheet were preferred against the appellant. 9. The appellant in his defence opted to remain mute. 10. The trial court evaluated the evidence and found the offence in the main count proved beyond reasonable doubt. The appellant was convicted of it and sentenced to serve 10 years’ imprisonment. 11. The appellant dissatisfied with the said conviction and sentence preferred an appeal to this Court on the grounds that; 1. The trial court sentenced him to 10 years’ imprisonment without consideration that he was the sole bread winner. 2. That the Court in imposing 10 years’ imprisonment against him, it did not consider that he was a first offender and remorseful. 12. He promised to adduce other ground during the hearing of the appeal but no other grounds were availed. 13. The appeal was canvassed by way of written submissions. The prosecution (Respondent) filed theirs and though the appellant claimed had sent via email were not traced by the time of writing this judgment. 14. The appeal from the grounds raised is against the sentence of 10 years’ imprisonment, meted against the appellant by the trial court. 15. Section 8 (3) of the Sexual Offences Act, the section that pronounces the sentence for the offence the appellant was charged and convicted states; “ 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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/14093/eng@2024-11-14 2

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16. In the recently decided case by the Supreme Court, Petition No. E018 of 2023, Republic v Joshua Gichuki Mwangi, the Court held that; “ Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the Courts to impose a harsher sentence.” 17. Given the foregoing, the most lenient possible legal sentence for the offence is 20 years’ imprisonment. The appellant herein was lucky that the trial court may have been influenced by the decision in the original Muruatetu Case, which spirit implied the Supreme Court had done away with mandatory minimum sentences. However, clarification was made later in the very same matter; and Petition No. E018 of 2023 which decision was on 12th July, 2024 has put the issue to rest. 18. Definitely the correct legal position tempts this Court to enhance the sentence to at least 20 years’ imprisonment, but I have resisted such to enable the appellant ride on the luck he had at the lower court. 19. The bottom line is that the appeal lacks merit and is hereby dismissed. DATED, SIGNED AND DELIVERED AT MALINDI THIS 14TH DAY OF NOVEMBER, 2024 S.M. GITHINJI JUDGE In the presence of; 1. Present (Appellant) 2. Ms Ochola for the State https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/14093/eng@2024-11-14 3

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