Case ID:55830

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{'Case Number:': 'Criminal Appeal Case 184 of 2011', 'Parties:': 'Bernard Mabonga v Republic', 'Date Delivered:': '07 Nov 2013', 'Case Class:': 'Criminal', 'Court:': 'High Court at Bungoma', 'Case Action:': 'Judgment', 'Judge(s):': 'Anne Abongo Omollo', 'Citation:': 'Bernard Mabonga v Republic [2013] eKLR', 'Case History:': "[Being An Appeal From The Judgment Of Hon Ngarngar (Pm) In Bungoma Chief Magistrate's Court Criminal Case No. 1254 Of 2010", 'Court Division:': 'Criminal', 'County:': 'Bungoma', 'History Docket No:': 'Criminal Case 1254 of 2010', 'Case Summary:': 'REPUBLIC OF KENYA\n\nIN THE HIGH COURT OF KENYA AT BUNGOMA\n\nCRIMINAL\xa0 APPEAL CASE NO. 184 OF 2011\n\n[BEING AN APPEAL FROM THE JUDGMENT OF HON NGARNGAR (PM) IN BUNGOMA CHIEF MAGISTRATE\'S\xa0 COURT CRIMINAL CASE NO. 1254 OF 2010]\n\nBERNARD MABONGA.......................... APPELLANT\n\nVERSUS\n\nREPUBLIC........................................... RESPONDENT\n\nJUDGMENT\n\n\tThe Appellant filed this appeal to challenge both conviction and sentence against a charge of defilement of a child contrary to Section 8 (1) as read with sub-section 3 of the Sexual Offences Act No.\xa0 3 of 2009.\xa0 He was sentenced to serve 20 years\xa0 imprisonment.\n\n\tDuring the hearing of the appeal, he submitted that he was not challenging the conviction but\xa0 was appealing on\xa0 sentence, which according to him was harsh.\n\n\tThe State Counsel\xa0 in reply submitted that the trial court was bound by the Law.\xa0 Under section 8 (3) of the Sexual Offences Act, the minimum sentence provided is\xa0 20 years.\xa0 She urged the court to uphold the sentence.\n\n\tSection 8 (3) provides that \xa0“a person who commits an offence of defilement with a child between the age of\xa0 12 and 15 years\xa0 is liable upon conviction to imprisonment\xa0 for a term of not less than 20 years.”. This position is restated in the case of DAVID KUNDU SIMIYU vs REPUBLIC, CR APPEAL NO 8 OF 2008, the Court of Appeal sitting in eldoret;\n\n\t\xa0\xa0\xa0\xa0\xa0\xa0\xa0\xa0 "Those are minimum sentences and parliament appears not to give discretion to courts to impose sentences \xa0 below those specified as the minimum. The provisions accord the prime objective of the Act which is prevention \xa0\xa0 and protection of all persons from harm and\xa0 unlawful sexual \xa0\xa0 assault".\n\n\tThe complainant in the instant case was 13 years old.\xa0 The lower court\xa0\xa0 thus gave the Appellant the minimum sentence prescribed by the Law.\xa0 There is nothing much this court can do as where a minimum sentence is prescribed, you are bound by the law.\xa0 The sentence meted out was within the\xa0 law.\xa0 The appeal\xa0 is\xa0 therefore dismissed.\n\n\xa0Dated And Delivered in open court this 7th day of November\xa0 2013.\n\nA. OMOLLO\n\nJUDGE.', 'History Magistrate:': 'Ngarngar', 'History Advocates:': 'Both Parties Represented', 'History County:': 'Bungoma', 'Case Outcome:': 'Dismissed', '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'}