Case ID:168199

Simon Kabiru Nyambura v Republic [2020] eKLR

Case Metadata

Case Number:

Criminal Appeal 98 of 2017

Parties:

Simon Kabiru Nyambura v Republic

Date Delivered:

09 Dec 2020

Case Class:

Criminal

Court:

High Court at Nakuru

Case Action:

Judgment

Judge(s):

Rachel Biomondo Ngetich

Citation:

Simon Kabiru Nyambura v Republic [2020] eKLR

Advocates:

State Counsel – Rita

Case History:

(An appeal on sentence from the judgment and/or decree of Honourable B. Mararo Principal Magistrate in Nakuru A/CR. No. 242 of 2016 delivered on 31st October 2017)

Court Division:

Criminal

County:

Nakuru

Advocates:

State Counsel – Rita

History Docket No:

A/CR. No. 242 of 2016

History Magistrate:

Hon.B. Mararo - PM

History Advocates:

Both Parties Represented

History County:

Nakuru

Case Outcome:

Appeal partly allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL APPEAL NO. 98 OF 2017

SIMON KABIRU NYAMBURA.........................................................................APPELLANT

VERSUS

REPUBLIC.........................................................................................................RESPONDENT

(An appeal on sentence from the judgment and/or decree of Honourable B. Mararo

Principal Magistrate in Nakuru A/CR. No. 242 of 2016 delivered on 31

st

October 2017)

JUDGMENT

1. The appellant was charged with the offence of

defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006

. The particulars being that on the 25

th

day of December 2016 within Nakuru County, intentionally and unlawfully committed an act by inserting his male genital organ namely penis into the genital organ namely vagina of

MA

a child aged 15 years.

2. The alternative charge of committing an indecent act with a child contrary to

Section 11 (1) of the Sexual Offences Act No. 3 of 2006

. The particulars being that on the 25

th

day of December 2016 within Nakuru County, intentionally and unlawfully committed an indecent act with

MA

a girl aged 15 years by touching her private parts namely vagina with his male genital organ namely penis.

3. The appellant denied the charges and the case proceeded for full trial. The prosecution called 5 witnesses in support of their case while the appellant in his defence gave sworn statement without calling any witness. By the judgment delivered on 31st October 2017, the lower Court found the appellant guilty of the main charge convicted and sentenced him to 20 years’ imprisonment.

4. The appellant being aggrieved and dissatisfied with the conviction and sentence, acting in person, he filed this appeal through a Petition of Appeal dated 13

th

of November 2017 and challenged the conviction and sentence on the following grounds: -

i. The learned trial magistrate erred both in law and in fact by failing to appreciate that the medical evidence produced before the trial court did not support the charges;

ii. The learned trial magistrate erred both in law and in facts by failing to consider that although it is an obligation of the prosecution to furnish the accused with statement and such other evidence they intend to use against the accused, it failed to do so despite his continued insistence;

iii. The learned trial magistrate erred in law and in fact by failing to consider that the alleged underlying circumstances during the commission of the offence were illogical and inconsistent with the truth;

iv. That the learned trial magistrate erred in law and in facts by failing to appreciate that the P3 form produced in evidence before the Court did not support the charge.

5. The state opposed the appeal both on conviction and sentence. On 5

th

November 2020 when the appeal came up for hearing, after oral submissions being made by the state counsel, the appellant decided to withdraw the appeal on conviction and prayed that the sentence be reduced.

ANALYSIS AND DETERMINATION

6. The appellant having withdrawn appeal on sentence will not make any comment on initial submissions on conviction and only determine whether the appellant deserve reduction of sentence. The appellant was sentenced to 20 years after he was found guilty of defiling the complainant. Record show that the complainant defiled was 15 years old. The Court imposed minimum sentence provided by statute.

7. I note that mandatory nature of death sentence was however declared unconstitutional by the Supreme Court in the case of

Muruatetu

for taking away Court’s discretion. It renders mitigating factors superfluous. The appellant opted not to mitigate in the lower Court and in the lower Court he prayed for the sentence to be reduced.

8. I have considered circumstances of this case; I also take note of the age of the complainant herein and find it appropriate to reduce the sentence to 10 years’ imprisonment.

9.

FINAL ORDER

1. Appeal on conviction marked as withdrawn.

2. Appeal on sentence allowed and sentence reduced to 10 years’ imprisonment from the date of sentence before the lower court 31

st

October 2017.

Judgment dated, read and delivered at Nakuru via zoom This 9

th

December, 2020

RACHEL NGETICH

JUDGE

In the Presence of:

Court Assistant – Jeniffer

State Counsel – Rita

Accused in person