JUDGMENT OF THE COURT
By this second appeal, Alfred Otieno Omondi, the appellant, has requested this Court to reduce the sentence of 11 years imprisonment which was imposed upon him by the Principal Magistrate’s Court at Siaya, for the main offence of attempted defilement of a child contrary to section 9(1) of the Sexual Offences Act, Act No. 3 of 2006. Having been convicted of the main count, no finding was made on the alternative count of indecent act with a child contrary to section 11(1) of the same Act.
Section 9(2) of the Sexual Offences Act, provides:
“(2) A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.”
In sentencing the appellant the trial Magistrate rendered himself thus:
“COURT - Offence carries a mandatory sentence of 10 years. To serve 11 years imprisonment.”
The penal provision provides a minimum sentence of 10 years. The trial court had power to impose a higher sentence if the circumstances of the case so demanded. The appellant was given 11 years imprisonment. That was a lawful sentence and considering the circumstances of the case 11 years imprisonment cannot be said to be manifestly excessive. The complainant was a child of 3½ years of age and in our view a severer sentence was called for. Besides, severity of sentence is by dint of the provisions of section 361(1)(a) of the Criminal Procedure Code a matter of fact. This being a second appeal only issues of law fall for consideration. For that reason we agree with Mr. Gumo, Assistant Director Public Prosecutions that the appeal has no merit. In the result it is dismissed. Order accordingly.
Dated and delivered at Kisumu this 23rd day of June, 2011
JUDGE OF APPEAL
ALNASHIR VISRAM