Kiambu High Court has reduced a life imprisonment for a man who had been convicted and sentenced for sodomising a 9 year old boy in Kiamwangi village of Kiambu county
He will now serve 30 years imprisonment after he appealed against the sentence meted against him by a Gatundu lower court on 11th December 2019.
Paul Gitau Wambu was charged that on the 28th of January 2019 at Kiamwangi village in Gatundu South Sub county, he unlawfully had carnal knowledge of the minor contrary to section 8(1)(2) of the sexual offences Act of 2006.
He pleaded not guilty to the charge and was released on 300,000 shillings bond with a surety of similar amount during the hearing of his case which was finalised in December 2019 when he was sentenced to life imprisonment.
Unsatisfied with the decision made by the lower court, Gitau moved to the High Court to appeal against the sentence.
In his written submissions which he relied upon, the appellant stated that the trial magistrate erred in law and fact by failing to find that the elements of the offence of defilement were not proved beyond reasonable doubt as required by law, by failing to consider the appellant alibi defence which remained unrebutted.
He also stated that the lower court failed to find that the prosecution witnesses’ narrations of evidence were unbelievable and illogical and there were material contradictions and that the evidence was not evaluated properly hence relying on insufficient, uncorroborated and incredible evidence.
The appeal was heard by Lady Justice Esther Maina during the September 2020 service week when visiting Judges are deployed to other courts to help decongest the backlog of pending cases.
While delivering her judgement, Justice Maina stated that she was satisfied that penetration was proved beyond reasonable doubt. “The evidence that the minor was sodomised was credible and trustworthy and did not require corroboration as Dr. Wambua Gachagua (Pw3) and clinical officer Lawerence Mwangi (Pw7) who both testified noted in their examination that the complainant had pain in the anal area and they came to the conclusion that it was true that he had been defiled.
The Judge also established that the complainant positively identified the appellant because the incident occured in broad day light.
His mother (Pw2) had testified that her son had reported to her that the appellant had defiled him.
The prosecution also produced police occurrence book (OB) extracts of the reports made at Kiamwangi AP post and thereafter to Gatundu police station as exhibits.
The OB extract further revealed the name of the assailant while in the other one for Gatundu police station the complainant is said to have revealed he knew the person who sodomised him.
Justice Maina confirmed that she did not find any inconsistencies or contradictions that would waterdown the prosecution’s evidence, “ there is no doubt in my mind that the appellant committed this offence and that his conviction was safe, the appeal against the conviction has no meaning and is dismissed” the judgement read.
The judge however found reason to disturb the sentence that was imposed that it was given merely because of its mandatory nature and did not take into account the appellants mitigation, antecedents and other surrounding circumstances; therefore substituted the life imprisonment with a 30 year incarceration from the date he was sentenced by the lower court.
The judgement was delivered virtually by the Kiambu duty Judge lady Justice Mary Kasango. Justice Maina is in charge of Nyamira High court.
By Antony Muli
