Kiambu High court has reduced a 20 year jail term served to a man convicted of defilement by a half.
David Ndegwa Wanjiru got a reprieve after the High court reduced the sentence to 10 years after a Kikuyu court found him guilty of defiling a 14 year old girl.
after who had been sentenced to 20 years by a Kikuyu court for defiling a 14-year-old girl in 2015 has had his sentence reduced to 10 years by on appeal.
A Kikuyu court had slammed the accused with the 20 year jail term before he appealed for a review at the High Court.
Lady Justice Mary Kasango who heard the appeal however dismissed his argument after perusing the submissions of the appellant adding that the strength of the prosecution case had proved beyond reasonable doubt that an offense was committed..
He had complained that his rights had been violated when the duty magistrate who was listening to his case was transferred and his predecessor reneged to start the case afresh. He also noted that he had been convicted on a defective charge and that a voir dire (examination) was not conducted as required by the law.
Justice Kasango in her Judgement which was delivered virtually in line with protocols meant to curt the spread of Covid-19 noted that according to the record, the complainant was a child who had just completed her KCPE education and that by recalling her it would disrupt her education and also cause her fatigue.
She further noted that the court had examined the complainant prior to the hearing of the case and confirmed that she knew the meaning of an oath.
In reference to court of appeal in the case of Japheth Mwambire Mbitha vs Republic (2019) eKLR it set out the purpose of conducting voir dire as follows, “Again, it bears repeating that the purpose is to ensure the minor understands the solemnity of an oath, and if not, at the very least, the importance of telling the truth. In this case, the record shows that a brief interview was conducted in this regard on each of the two witnesses, to which the two minors indicated to the court that failure, to tell the truth, renders a liar ineligible to go to heaven”
On the issue of being sentenced on a defective charge, Lady Kasango explained that the appellant had been convicted and sentenced under section 8(1) of the Sexual Offences Act which does not have the word “unlawful” in its particulars. It states that a person who commits an act that causes penetration with a child is guilty of an offense termed defilement” and the charge was therefore not as indicated in his grounds of appeal.
The Judge, therefore, interfered only with the sentence as guided by Francis Muruatetu case on the mandatory minimum sentences imposed on sexual offenses. She noted that the provisions of section 8 of the sexual offenses Act must be interpreted so as not to take away the discretion of the court in sentencing.
“The sentencing policy guidelines require the court in the sentencing of an offender to a non-custodial sentence 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 physical and psychological effect of the offense on the victim whether the offense was committed by an individual or a gang and the previous convictions of an 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 offense and whether the offender is remorseful”
For these reasons, lady Kasango dismissed the appeal against conviction but reduced the sentence which shall be calculated starting from 28th May 2015.
By Lydia Shiloya
