Case ID:171505

Republic v Patrick Kinyua John [2020] eKLR

Case Metadata

Case Number:

Criminal Revision 3 of 2020

Parties:

Republic v Patrick Kinyua John

Date Delivered:

04 Mar 2020

Case Class:

Criminal

Court:

High Court at Chuka

Case Action:

Ruling

Judge(s):

Robert Kipkoech Limo

Citation:

Republic v Patrick Kinyua John [2020] eKLR

Advocates:

Momanyi for the Applicant

Court Division:

Criminal

Advocates:

Momanyi for the Applicant

Extract:

0

Case Outcome:

Application 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 CHUKA

CRIMINAL REVISION NO. 3 OF 2020

(

From original conviction and sentence in Criminal Case No. SOA 18 of 2019 of the HON. NJOKI KAHARA (SRM at the Chief Magistrate's Court at Chuka delivered on 30/1/2020)

REPUBLIC............................................................................ODPP

VERSUS

PATRICK KINYUA JOHN..................................RESPONDENT

R U L I N G

1.

PATRICK KINYUA JOHN

, the Respondent herein was charged with the offence of defilement contrary to

Section 8(1) (4)

of the

Sexual Offences Act

No. 3 of 2006 vide Chuka CMCC SOA NO. 18/2019

. The particulars as per the charge presented to that court indicates that on diverse dates between December 2018 and 28

th

May 2019 at [particulars withheld] village Magutuni within Tharaka Nithi County he defiled (name withheld) a child aged 17 years old.

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

Section 11(1)

of

Sexual Offences Act

but since he was convicted and sentenced in the main charge this court will delve on the main charge of defilement.

3. The Respondent did deny the charge but after trial, he was found guilty, convicted and sentenced to 4 years probation. In passing the sentence the trial court took into consideration the principle in Muruatetu's case and the fact that the Respondent and the complainant were lovers and had gotten a child out of their union.

4. The Office of Director of Public Prosecution was dissatisfied with the sentence meted out and has challenged its legality vide this revision.

5. The grounds upon which the State/Applicant has applied for revision are as follows:

i) That the sentence is illegal and too lenient as compared with the offence committed.

ii) The Sexual Offences Act does not provide for a non-custodial sentence.

iii) That a probation order of 4 years is illegal as the Probation of Offenders Act provides for probation for period of not more than 4 years.

6. This court has called for the lower court file and I have perused through it.The Respondent was charged and convicted of the offence of defilement contrary to

Section 8(1) (4)

which provides that a person who commits an offence of defilement with a child between the age of 16 and 18 years is liable upon conviction to imprisonment for a term of not less than 15 years. The Respondent herein was found guilty of the offence charged and convicted accordingly.

However I find that the judgment is somehow contradictory because while it found that the Respondent's defence under

Section 8(5)

of

Sexual Offences Act

was well taken, it still found that the offence had been committed. If the trial court was convinced that the defence raised had been established, then she should have acquitted him rather than return a verdict of guilty.

7. I am also persuaded by the contention by the Applicant that handing out a non-custodial sentence after conviction in a case of sexual offence was improper given that the minimum sentence prescribed by law is 15 years imprisonment. This court finds that notwithstanding the principle in

Muruatetu's case

, handing out a non-custodial sentence was too lenient in the circumstances. Sexual Offences Act doesn't provide for non custodial sentence.

8. Furthermore it is now well settled following the Supreme Court's decision in

Francis Karioko Muruatetu -vs- Republic [2017] eKLR

the mandatory nature of minimum sentences prescribed by Sexual Offences Act is unconstitutional. However it should not be lost that sexual offences in view of the position taken by Legislature in passing the said statute was that Kenyans viewed sexual offences to be serious to warrant stiff penalties in order to protect the young and vulnerable. There has to be good reason to depart from the prescribed sentence.

In the case of

Dismas Wafula Kilwake -vs- Republic [2018] eKLR

the Court of Appeal made the following observations:-

“[We] hold that the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.

The Sentencing Policy Guidelines require the court, in sentencing an offender to a non-custodial sentence to 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 number of victims involved in the offence, the physical and psychological effect of the offence on the victim, whether the offence was committed by an individual or a gang, and the previous convictions of the 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 offence and whether the offender is remorseful."

9. In this instance, the Respondent is 25 years old and obviously took advantage of a 17 year old school going girl and perhaps put to rest all her ambition for further studies and career. The effect of the offence on the minor are long lasting and the psychological effect is even worse.

I find that the 4 year probation sentence was improper. The provisions of

Section 5

of

Probation of Offenders Act

also limits the period of probation to not more than 3 years. The trial court's sentence of 4 years probation was illegal. It is not sustainable.

In the end this court finds basis to revise the sentence imposed by the trial court on 30

th

January 2020 by setting it aside. In its place taking mitigating factors into consideration, and to give chance to the victim to go back to school and try and get back her dreams in education and career, the Respondent is hereby sentenced to serve 5 years imprisonment. He has 14 days Right of Appeal.

Dated, signed and delivered at Chuka this 4

th

day of March 2020.

R. K. LIMO

JUDGE

4/3/2020

Ruling signed, dated and delivered in the open court in presence of Momanyi for Applicant and Respondent in person.

R.K. LIMO

JUDGE

4/3/2020