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|Case Number:||Criminal Appeal Case 184 of 2011|
|Parties:||Bernard Mabonga v Republic|
|Date Delivered:||07 Nov 2013|
|Court:||High Court at Bungoma|
|Citation:||Bernard Mabonga v Republic  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|
|History Docket No:||Criminal Case 1254 of 2010|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL APPEAL CASE NO. 184 OF 2011
[BEING AN APPEAL FROM THE JUDGMENT OF HON NGARNGAR (PM) IN BUNGOMA CHIEF MAGISTRATE'S COURT CRIMINAL CASE NO. 1254 OF 2010]
BERNARD MABONGA.......................... APPELLANT
The 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. 3 of 2009. He was sentenced to serve 20 years imprisonment.
During the hearing of the appeal, he submitted that he was not challenging the conviction but was appealing on sentence, which according to him was harsh.
The State Counsel in reply submitted that the trial court was bound by the Law. Under section 8 (3) of the Sexual Offences Act, the minimum sentence provided is 20 years. She urged the court to uphold the sentence.
Section 8 (3) provides that “a person who commits an offence of defilement with a child between the age of 12 and 15 years is liable upon conviction to imprisonment 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;
"Those are minimum sentences and parliament appears not to give discretion to courts to impose sentences below those specified as the minimum. The provisions accord the prime objective of the Act which is prevention and protection of all persons from harm and unlawful sexual assault".
The complainant in the instant case was 13 years old. The lower court thus gave the Appellant the minimum sentence prescribed by the Law. There is nothing much this court can do as where a minimum sentence is prescribed, you are bound by the law. The sentence meted out was within the law. The appeal is therefore dismissed.
Dated And Delivered in open court this 7th day of November 2013.
|History Advocates:||Both Parties Represented|
|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|