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|Case Number:||Criminal Appeal 122 of 2010|
|Parties:||JAMES KARIUKI KABARI v REPUBLIC|
|Date Delivered:||07 Oct 2011|
|Court:||High Court at Malindi|
|Judge(s):||Hellen Amolo Omondi|
|Citation:||JAMES KARIUKI KABARI v REPUBLIC  eKLR|
|Case History:||(FROM ORIGINAL CONVICTION AND IN CRIMINAL CASE NO. 585 OF 2009 SENTENCE OF THE SENIOR RESIDENT MAGISTRATE COURT AT LAMU BEFORE KITHINJI A.R SRM)|
|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|
IN THE HIGH COURT OF KENYA
(FROM ORIGINAL CONVICTION AND IN CRIMINAL CASE NO. 585 OF 2009 SENTENCE OF THE
SENIOR RESIDENT MAGISTRATE COURT AT LAMU BEFORE KITHINJI A.R SRM)
The appellant pleaded guilty to the charge and was sentenced to serve 21 years imprisonment. The facts as narrated to the trial court were that the complainant J.W, a girl aged 13 years was walking form M market to their home at NAIROBI area when she met the appellant who convinced her to accompany him to his home so that he could send her to her mother.
Appellant confirmed the facts as being true saying they had agreed to have sex. The prosecution informed the court that appellant was a first offender. Appellant`s mitigation was that the complainant was his girlfriend who used to sleep with him and the only snag was that he did not inform her parents but she loved him.
The appellant sought to rely on his written submissions in which he states that the Trial Magistrate finding was based on a section which does not reveal any prohibited act recognized by the Sexual Offences Act, saying there was no proper charge as he was only charged with the penalty section of the Act and this therefore rendered the charge defective. The charge sheet indicates appellant was charged under section 8 (1) as read with section 8 (2).
“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement”
“A person who commits an offence of defilement with a child aged eleven years or less, shall upon conviction be sentenced for life”
Appellant also argues that the P3 form refers to sexual assault whilst he is charged with the offence of defilement, and that those two terms are totally different as provided under the sexual Offences Act. While I concur with that argument in terms of terminology under the Act, it would be myopic to restrict the trial court to the phrases used in the P3 form without paying regard to the findings made by the medical personnel in that document – the findings disclosed an act defined under the Act as defilement.
It is also drawn to this court`s attention that the complainant was a girl aged 13 years and the appellant admitted the facts as being true, and the court recorded exactly what he admitted in Kiswahili language. MR KEMO wanted the court to consider what appellant said in mitigation regarding his relationship with the girl and pointed out that a girl of 13 years cannot give consent, so his grounds of appeal are a mere afterthought intended to exonerate him from what he did.
I perused the trial court`s record, the plea was unequivocal and infact appellant explained to the Trial magistrate in his admission that they had agreed to have sex. In mitigation he explained further on this relationship saying the girl was his girl friend who used to sleep with him and loved him. If the appellant had a language problem in the lower court, then the genuiness of this claim is defeated by the very response he gave in this court during the appeal which he elected to conduct in Kikuyu and which was similar to what he had told the trial court that;-
Although the penalty section cited related to age 11 years or less, I note that the Trial Magistrate was diligent enough to take that into account when passing sentence which is why instead of passing life sentence as contemplated under section 8 (2), he imposed a penalty of 21 years which is contemplated under section 8 (3) where the victim is aged 13 years - the provision is as follows;-
The upshot then is that the sentence meted out was legal and proper and I have no reason whatsoever to interfere with it – it is confirmed. The sum total of my finding is that the appeal has no merit and is dismissed.