Republic v GL (Initials) (Sexual Offence E005 of 2024) [2024] KEMC 53 (KLR) (16 October 2024) (Sentence)
Neutral citation:
[2024] KEMC 53 (KLR)
Republic of Kenya
Sexual Offence E005 of 2024
AT Sitati, SPM
October 16, 2024
Between
Republic
Prosecutor
and
GL (Initials)
Accused
Sentence
1In the main count, the accused person denied the charge of defilement contrary to section 8(1)(3) of the Sexual Offences Act. The particulars were that on diverse dates between 7th August and 29th August, 2024 at night at xxxxx area of xxxxxxxxxx Sub-County of Samburu County he unlawfully caused his penis to penetrate the vagina of M.N. (initials) a child aged 12 years old.
2In the alternative count, he was denied the offence of committing an indecent act to a minor contrary to section 11(1) of the Sexual Offences Act. The particulars were that on diverse dates between 7th August and 29th August, 2024 at night at xxxxxxxx area of xxxxxxxx Sub-County of Samburu County he intentionally and unlawfully caused his penis to touch the vagina of M.N. (initials) a child aged 12 years old.
3The accused person was unrepresented in this case while the DPP’s case was conducted by Prosecution Counsel Moses Ndira.
4After hearing the DPP and the Defence the court found the accused person guilty of defilement and convicted him under section 215 of the Criminal Procedure Code.
Antecedents of the Convict
5DPP Ndira submitted that the convict was a first offender and he had no previous records.
Mitigation
6In mitigation, the convict told the court that he did not commit the offence. He submitted that he had lived with the child as his own inspite of the mother getting the child out of wedlock.8.Defilement(1).A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.(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.
Sentencing Principles
7On the authorities, the court considered that of Geoffrey Kilonzo Makau –v- Republic (2020)eKLR (Odunga J. as he then was) where learned Judge made an exposition of the principles applicable in considering an appropriate sentence:
Recent Authorities On Similar Offences Of Defilement
8In the present case, the offence attracts life imprisonment since the child had not yet clocked 12 years of age. The question that arises is that amounts to “life imprisonment?” To answer this issue, the court considered the authority of Muriithi v Republic (Criminal Appeal E067 of 2023) [2024] KEHC 6536 (KLR) (3 June 2024) (Judgment) (Kizitro Magare J.) where it was held that life imprisonment shall be read to mean 30 years:
9In the case of Thaithi v Republic (Criminal Appeal E007 of 2020) [2024] KEHC 10639 (KLR) (11 September 2024) (Judgment) (Rhoda Rutto J.) the child was aged 11 years 9 months old and the appellant who was her mother’s boyfriend defiled her in the middle of the night when the mother left th ehosue to go and answer a call of nature in a toilet outside the house. He was sentenced to 45 years imprisonment in the following terms:58.The appellant was sentenced to 45 years imprisonment. In passing sentence, the trial court considered all the mitigating factors and noted that: “Taking into account that the mandatory sentence of life imprisonment was revised after the reasoning in Muruatetu case, looking into the case of David Esoku Samuel in which the court sentenced the accused to 25 years after 11 years in custody, the aggravating circumstances of this case and the fact that he never pleaded guilty. The court will sentence the accused to 45 years in jail….”.59.The Appellant did not submit much on this save to mention that the sentence be set aside as the appeal has merit. I however note that trial court did not peg the sentence to the mandatory nature of sentence as provided for under the Sexual Offences Act. The court gave a deterrence sentence having considered the jurisprudence as at that time. This court finds no reason to disturb the sentence. The upshot is that the appeal on conviction fails for lack of merit. As regards sentence, the 45 years imprisonment sentence is also upheld save that in its computation, regard shall be borne to the period in remand custody during trial, from 31st December 2019.
10A further guidance was from the Court of Appeal decision of Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) (Judgment) (P Nyamweya, JW Lessit & GV Odunga, JJ.A). in this appeal, the appellant had been sentenced to life imprisonment for defiling a child 4 ½ years. On appeal the Court of Appeal reviewed the life imprisonment to a determinate sentence of 40 years imprisonment in the following terms:
11The offender herein expressed no remorse. While motive was not a relevant factor in the case, it appears that at the back of his mind he had considered the complainant an illegitimate child since in his mitigation he stated that his wife got her out of wedlock. The child was so traumatized that she started abusing drugs and substances so as to try without success to relieve the stress of being repeatedly defiled over a wholse month by a person that she recognized as her own father. In the result, guided by the Court of Appeal authorities of Manyeso And Ayako authorities on what constitutes a life sentences the court makes the following orders:1.The convict is a declared as a dangerous Sexual offender since the since was the victim of this traumatic experience. This declaration is made under section 39 of the Sexual Offences Act which states as follows:39.A court may declare a person who has been convicted of a sexual offence a dangerous sexual offender if such a person has -(a)more than one conviction for a sexual offence;(b)been convicted of a sexual offence which was accompanied by violence or threats of violence; or(c)been convicted of a sexual offence against a child.2.As a deterrent, punitive and a denunciation of the convict sentence, the court passes a sentence of 30 years imprisonment on the convict.
Right of appeal is 14 days.
DATED, READ AND SIGNED AT MARALAL LAW COURTS THIS 16TH DAY OF OCTOBER, 2024HON.T.A SITAITISENIOR PRINCIPAL MAGISTRATEMARALAL LAW COURTSPresentDPP NdiraConvicted PersonLeparsanti Court AssistanT